United States District Court, C.D. Illinois
JAMES D. LIBY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER & OPINION
BILLY McDADE United States Senior District Judge
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”). 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.
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.
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)).
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).
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.”
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).
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
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. In short, this
claim is likely barred by the one year statute of
limitations, see 28 U.S.C. § 2255(f), or
otherwise procedurally defaulted for failure ...