United States District Court, C.D. Illinois
JAMES E. SHADID, Chief District Judge.
This matter is now before the Court on Petitioner, Logan Michael Gaylord's ("Gaylord"), Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth herein, his Motion  is DISMISSED for lack of jurisdiction.
On August 11, 2011, Gaylord pled guilty to conspiracy to distribute a controlled substance with death resulting from use of said substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), distribution of a controlled substance with death resulting from use of said substance in violation of §§ 841(a)(1) and (b)(1)(C), possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922k, and possession of a sawed-off shotgun in violation of 26 U.S.C. § 5861(d) in the United States District Court for the Central District of Illinois. The plea agreement contained a waiver of his right to pursue a direct appeal and collateral attack pursuant to § 2255, as well as an agreement from the Government to recommend a three-point reduction in offense level and provide an opportunity to obtain a downward departure for substantial assistance. He was sentenced to a statutory, mandatory minimum term of 240 months imprisonment on Counts I and II, 60 months' imprisonment on Count III, and 120 months' imprisonment on Count IV on December 9, 2011. No direct appeal to the Seventh Circuit Court of Appeals was pursued.
On October 10, 2014, Gaylord filed a § 2255 motion claiming that his sentence was unlawfully enhanced based on new Supreme Court precedent in Burrage v. United States, 134 S.Ct. 881 (2014). This Order follows.
A petitioner may avail himself of § 2255 relief only if he can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice." Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that "vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993).
A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred from raising: (1) issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, absent a showing of cause for the default and actual prejudice from the failure to appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 710-20 (7th Cir. 1994).
In this § 2255 Petition, Gaylord attacks the validity of his sentence and asks this Court to resentence him based on new case precedent that he contends narrows the scope of the crimes of which he was convicted. Specifically, he argues that in the wake of Burrage, the failure to determine that his sale of oxycodone was a but-for cause of the death of Ryan Evins renders his plea unknowing and involuntary and prevents him from being guilty of the enhancement that applies to an offense of distributing a controlled substance that resulted in death.
Attacking the validity of the enhancement to his sentence is a non-constitutional claim that could have been raised on direct appeal but was not and is therefore waived. Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir.1988), citing Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) ("non-constitutional errors which could have been raised on appeal but were not, are barred on collateral review-regardless of cause and prejudice.") The Court further notes that he relies on Burrage, which is a statutory interpretation case that does not apply retroactively to cases on collateral review, as the Supreme Court has not declared such retroactive application, and no other court has the authority to do so. Ragland v. United States, 756 F.3d 597, 602 (8th Cir. 2014); see also, Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (holding that statutory interpretation cases like Alleyne v. United States, 133 S.Ct. 2151 (2013), are merely extensions of Apprendi v. New Jersey, 530 U.S. 466 (2000), and do not apply retroactively); United States v. Martin, 564 Fed, Appx. 850, 851 (7th Cir. 2014). Accordingly, Gaylord's reliance on Burrage is futile.
Gaylord's motion is also untimely. There are statutory time limits which govern whether a district court can entertain a collateral attack on a federal sentence. The present case is covered by 28 U.S.C. § 2255, which states in relevant part:
A 1 year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of -
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented ...