United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on petitioner Anthony
Garrett's motion entitled “Plain Error Rule
52(b)” (Doc. 10), filed in this long closed case in
which the Court denied in part and granted in part
Garrett's first § 2255 motion (Doc. 10). This motion
requests various forms of relief, not all of which should be
filed in a single document, or even a single case. The Court
will address in turn each part of Garrett's motion and
will consider it in the most appropriate way.
asks the Court to reduce his sentence in light of Amendments
750 and 782 to the United States Sentencing Guidelines Manual
(“U.S.S.G.”), both of which are retroactive (Doc.
176 at 1). This request should be considered in Garrett's
criminal case, not this closed § 2255 case. The Court
will direct the Clerk of Court to refile a copy of this
motion as a motion for a sentence reduction pursuant to
Amendments 750 and 782 in his criminal case. The Court notes
it has already denied Garrett reductions based on these two
amendments on the grounds that he was a career offender and
that his sentencing range was therefore not lowered by the
amendments (No. 93-cr-40032-JPG, Docs. 176 & 179).
However, in light of Garrett's anticipated challenge to
his career offender status, the Court will allow a successive
sentence reduction motion, which could be relevant if his
career offender status is vacated.
asks the Court to remand this case for resentencing because
the Court erred in its instructions to the jury in his
criminal trial and in calculating his relevant conduct at
sentencing (Doc. 176 at 2-4). He also asks the Court to
resentence him based on the unconstitutional application of
the career offender guideline residual clause, U.S.S.G.
§ 4B1.2(1)(ii) (1993), to find his prior convictions
listed in ¶¶ 43 and 44 of his Presentence
Investigation Report (“PSR”) were “crimes
of violence” (Doc. 176 at 4-6).
relief Garrett requests in this portion of his motion is only
available in a motion under 28 U.S.C. § 2255 to vacate
his sentence. The Court therefore construes it as a §
2255 motion despite the fact that it is not explicitly
labeled as such. “Any motion filed in the district
court that imposed the sentence, and substantively within the
scope of § 2255 &1, is a motion under
§ 2255, no matter what title the prisoner plasters on
the cover.” Melton v. United States, 359 F.3d
855, 857 (7th Cir. 2004); accord Curry v. United
States, 507 F.3d 603, 604 (7th Cir. 2007). This is at
least Garrett's third § 2255 motion. He filed his
first motion in this case in April 1997, and the Court denied
the motion to the extent it sought relief from Garrett's
drug conviction and granted it to the extent it sought relief
from his firearm conviction (Doc. 7). He filed his second
motion in January 2005, and the Court dismissed it for lack
of jurisdiction because it was an unauthorized second or
successive petition. See 05-cv- 4009-JLF.
order for the Court to consider a successive petition, the
Seventh Circuit Court of Appeals must certify the successive
petition pursuant to 28 U.S.C. § 2255(h). Curry v.
United States, 507 F.3d 603, 604 (7th Cir. 2007);
Nunez v. United States, 96 F.3d 990, 991 (7th Cir.
1996). It has not done so. Therefore, the Court does not have
jurisdiction to entertain the pending § 2255 motion.
the part of this § 2255 motion targeting Garrett's
career offender status raises the question of whether
Johnson v. United States, 135 S.Ct. 2551 (2015)
(holding that an increased sentence under the residual clause
of the Armed Career Criminal Act, 18 U.S.C. § 924(e)
violates the right to due process), applies to guideline
career offenders like Garrett. See United States v.
Hurlburt, No. 14-3611 & 15-1686, 2016 WL 4506717, *7
(7th Cir. Aug. 29, 2016) (en banc; holding on direct
appeal that application of similar career offender residual
clause was due process violation because it was
unconstitutionally vague). On several occasions, the Court of
Appeals has granted leave to file a successive § 2255
motion based on this theory, and the Court suspects it may
authorize Garrett to do so. Accordingly, the Court will
forward Garrett's motion to the Court of Appeals for its
possible consideration as a motion for leave to file a
successive § 2255 motion. If such leave is granted, the
petitioner should file a new § 2255 motion in this
Certificate of Appealability
to Rule 11(a) of the Rules Governing § 2255 Proceedings
and Rule 22(b)(1) of the Federal Rules of Appellate
Procedure, the Court considers whether to issue a certificate
of appealability of this final order adverse to the
petitioner. A certificate is required even for cases in which
the court dismissed an unauthorized second or successive
collateral attack for lack of jurisdiction. Sveum v.
Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per
curiam). A certificate of appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see Tennard v. Dretke, 542 U.S.
274, 282 (2004); Ouska v. Cahill-Masching, 246 F.3d
1036, 1045 (7th Cir. 2001). To make such a showing, the
petitioner must “demonstrate that reasonable jurists
could debate whether [the] challenge in [the] habeas petition
should have been resolved in a different manner or that the
issue presented was adequate to deserve encouragement to
proceed further.” Ouska, 246 F.3d at 1046;
accord Tennard, 542 U.S. at 282; Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (certificate of
appealability should issue if the petitioner demonstrates
“that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.”). The Court finds that Garrett has not made
such a showing and, accordingly, declines to issue a
certificate of appealability.
foregoing reasons, the Court:
DIRECTS the Clerk of Court to refile this
motion (Doc. 10) as a motion for a sentence reduction
pursuant to Amendments 750 and 782 in ...