United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND
I. Shadur Senior United States District Judge
Lee Fryer ("Fryer") has filed a document (Dkt. No.
205) captioned "Defendant's Motion To Vacate Count 6
in the Interests of Justice and Fairness, " accompanied
by a thick packet of exhibits occupying some 180-odd pages.
That filing, which deals with Fryer's quarter-century-old
conviction in Criminal Case No. 90 CR 57, has also been given
a civil case number, purely for administrative convenience in
enabling the recordkeeping in connection with Fryer's
current motion to be separated from the 200-plus docket
entries in the underlying criminal case. That civil case
number, however, led to the motion being assigned initially
to this Court's colleague Honorable Sam Der-Yeghiayan via
the computerized random assignment system operative in this
District Court. But the motion was then reassigned to this
Court's calendar because it had originally presided over
Fryer's trial, conviction and sentencing and over his
later unsuccessful effort to invoke 28 U.S.C. § 2255
that will be said here should be viewed as questioning
Fryer's many positive efforts, which his current
submission and exhibits have described in detail, to make him
a totally different person from the one whose crimes and
background led to the severe 562 month custodial sentence
that he received from this Court. Both his crimes and the
sentencing took place in the pre-Booker era, when
the sentencing guidelines were mandatory and when our Court
of Appeals was among the least receptive, if not indeed the
least receptive, forum for departures from those mandatory
guidelines. And in Fryer's case the guideline-driven
sentence was enhanced dramatically by the mandatory stacking
compelled by 18 U.S.C. § 924(c), which in Fryer's
case upped the consecutive sentence total to that 562 month
Fryer's current effort to escape from the consequence of
that combination, Part IV of his current motion is captioned
"This Court Should Apply the Holloway Doctrine to Reduce
Mr. Fryer's Sentence." What Fryer terms the
"Holloway Doctrine" is the relief that was afforded
by another District Judge -- the Honorable John Gleeson of
the Eastern District of New York --to a defendant whose
criminal background and sentence were much like Fryer's.
As Judge Gleeson's opinion in United States v.
Holloway, 68 F.Supp. 310 (E.D. N.Y. 2014) revealed,
defendant Holloway's circumstances for sentencing
purposes were very similar to Fryer's: He had been
convicted of carjacking three cars at gunpoint, and the same
statutory stacking had produced a 57 year sentence. But Judge
Gleeson's opinion made it plain that his perceived
ability to grant relief did not stem from his
action, but rather from the United States Attorney's
motion to dismiss two of Holloway's counts of conviction.
That is made plain in a portion of the language that Fryer
himself quotes from the opinion in Holloway, 68
F.Supp. at 316:
This is a significant case, and not just for Francois
Holloway. It demonstrates the difference between a Department
of Prosecutions and a Department of Justice. It
shows how the Department of Justice, as the government's
representative in every federal criminal case, has the power
to walk into courtrooms and ask judges to remedy injustices.
The use of this power poses no threat to the rule of
finality, which serves important purposes in our system of
justice. There are no floodgates to worry about; the
authority exercised in this case will be used only as often
as the Department of Justice itself chooses to exercise it,
which will no doubt be sparingly.
brief digression from the analysis that follows, it is
interesting that another parallel between Holloway's case
and Fryer's case is provided by a recital in
Holloway, id. at 314 that the United States
Attorney there (now the United States Attorney General) had
suggested that Holloway should apply for a Presidential
commutation of his sentence rather than turning to the
District Court for possible relief. And among the exhibits to
Fryer's current motion are two letters reflecting
presidential denials of his requests for relief that
are not subject to possible appeal. In any event, in
Holloway's case his lack of success on the commutation
front led to reconsideration by the United States Attorney as
to filing a prosecutorial motion to vacate counts of
conviction that gave rise to the stacking effect.
than a decade ago Fryer filed with this Court some materials
of the same type that he has now tendered once again as
assertedly entitling him to relief. At that time this Court
responded with a February 8, 2005 letter (copy attached) that
reflected this Court's view that it had "no power --
no jurisdiction -- to take any action on your behalf."
That remains true today, for the Holloway case never
even hinted that the decision to vacate counts of conviction
was judge-activated rather than prosecutor-activated.
bottom line here is that the invitation extended by
Fryer's motion for this Court to follow the path
ultimately pursued in Holloway by vacating Count 6
of his long-ago indictment does not conform to Seventh
Circuit law (which is of course binding on this Court). Last
year's decision in Ramirez v. United States, 799
F.3d 845 (7th Cir. 2015) followed the lead of the United
States Supreme Court in Gonzalez v. Crosby, 545 U.S.
524 (2005) in defining the permissible scope of Fed.R.Civ.P.
("Rule") 60(b)(6) in dealing with long-delayed
collateral challenges to a prisoner's sentence. Although
Ramirez, 799 F.3d at 851 recognized that
"Gonzalez held that in rare circumstances, a
motion under Rule 60(b) may be used by a prisoner, "
that recognition was preceded by the Ramirez,
id. statement that the prisoner there "is not
trying to present a new reason why he should be relieved of
either his conviction or his sentence, as provided in 28
U.S.C. § 2255(a)." But that -- presenting a totally
new reason for relief -- is precisely what Fryer seeks to do
would take a real stretch to squeeze Fryer's current
effort into the "rare circumstances" mold described
by Ramirez, which followed the language quoted in
the preceding paragraph of this opinion with this further
description at 799 F.3d at 850 of the principle articulated
in Gonzalez (with citations to Gonzalez
There the Court confirmed that "Rule 60(b) has an
unquestionably valid role to play in habeas cases." But
that role is restricted. The "movant seeking relief
under Rule 60(b)(6) [must] show extraordinary circumstances
justifying the reopening of a final judgment."
already stated, there is no question that Fryer is seeking to
advance a totally new reason for relief, as the prisoner in
Ramirez was not.
being the case, the description of the Gonzalez
holding set out in Phillips v. United
States, 668 F.3d 433, 435 (7th Cir. 2012) fits the
Gonzalez v. Crosby, 545 U.S. 524, 533-35, 125 S.Ct.
2641, 162 L.Ed.2d 480 (2005), holds that a Rule 60(b) motion
in a collateral proceeding under § 2254 or § 2255
that attacks a district court's decision "on the
merits" must be treated as a new "application"
for collateral review, and thus is barred by § 2244(b)
unless the ...