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Liby v. United States

United States District Court, C.D. Illinois

November 10, 2016

JAMES D. LIBY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER & OPINION

          JOE BILLY McDADE United States Senior District Judge

         This matter is before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody (Doc. 1) filed by James D. Liby (the “Petitioner”).[1] For the reasons stated below, the motion is taken under advisement and the Government is directed to file an answer, motion, or other response on only the first Ground for Relief presented by Petitioner.

         BACKGROUND

         Petitioner pled guilty on March 3, 2011 and was ultimately convicted of conspiracy to distribute crack cocaine, methamphetamine and cocaine in violation of 21 U.S.C. §§ 841 and 846 and possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841. (Plea Agreement and Judgment, United States v. Liby, No. 10-cr-40051 (C.D. Ill. 2011), Docs. 72 and 127). He was sentenced to 324 months for the first offense and 262 months for the second, to run concurrently. (Judgment, United States v. Liby, No. 10-cr-40051 (C.D. Ill. 2011), Doc. 127 at 2). Judgment was entered in his case on June 11, 2012.

         LEGAL STANDARDS

         Section 2255 of Title 28 of the United States Code provides that a sentence may be vacated, set aside, or corrected “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” “Relief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Thus, § 2255 relief is limited to correcting errors of constitutional or jurisdictional magnitude or errors constituting fundamental defects that result in complete miscarriages of justice. E.g., Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994), overruled on other grounds by United States v. Ceballos, 26 F.3d 717 (7th Cir. 1994). “A § 2255 motion is not a substitute for a direct appeal.” Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003) (citing Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995)).

         Generally, a 2255 motion must be filed within one year of the date the judgment against the petitioner became final. 28 U.S.C. § 2255(f)(1); Clay v. United States, 537 U.S. 522, 527 (2003) (“Finality attaches when this Court... denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”). However, sub-paragraph (f)(3) provides that a 2255 motion may be timely if it is brought within one year of the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires district courts to conduct preliminary reviews of § 2255 motions. The rule states in relevant part: “If it plainly appears from the motion, any attached exhibits, and the record of the prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States Attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.”

         DISCUSSION

         Petitioner purports to bring his first claim under the Fair Sentencing Act of 2010 (the “FSA”). He states:

I was arrested before November 2010 and sentenced after November 2010. I plead guilty to 50 grams or more, but nothing near 280 grams or more. Based off the plea agreement it only adds up to 42 grams of “crack” cocaine. I don't believe the government can prove 280 grams or more of “crack” cocaine.

(Doc. 1 at 5).

         The FSA took effect on August 3, 2010. The drug conspiracy to which Petitioner pled was alleged to have existed until July, 2010. (Plea Agreement, United States v. Liby, No. 10-cr-40051 (C.D. Ill. 2011), Doc. 72 at 14). The law in this judicial circuit at the time of Petitioner's sentencing, June 11, 2012, was that the FSA did not apply retroactively to sentences imposed before that Act became effective. United States v. Bell, 624 F.3d 803 (7th Cir. Oct. 20, 2010). Not until June 21, 2012, did the United States Supreme Court hold that the FSA applied to criminal defendants whose crimes preceded the effective date of the FSA. Dorsey v. United States, 132 S.Ct. 2321. Section 2255(f) provides that § 2255 motions must be filed within one year of the date the judgment against the petitioner became final. 28 U.S.C. § 2255(f)(1). Sub-paragraph (f)(3) provides that a § 2255 motion may be timely if it is brought within one year of the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. Thus, if Petitioner is challenging his conviction based upon the law as announced in Dorsey, he had at best, one year after the date Dorsey was decided-June 21, 2013-to bring such a claim. The instant motion was filed in October 2015, so it is clearly time-barred.

         Even if this Court were to interpret this claim to be a factual challenge to the amounts and calculations that led to Petitioner's Base Offense Level in his Presentence Investigation Report (“PSR”), which was adopted without change by the Court in its decision to sentence Petitioner as it did, it would still be time-barred. The time to challenge the amounts and calculations in the PSR elapsed long ago and there is no basis to revisit this issue now on collateral review. Section 2255(f)(4) applies a one year limitation period that runs from the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. Petitioner has offered no explanation as to why it has taken seven years for him to recognize that the amounts and calculations in his plea agreement and PSR are allegedly incorrect.[2] In short, this claim is likely barred by the one year statute of limitations, see 28 U.S.C. ยง 2255(f), or otherwise procedurally defaulted for failure ...


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