United States District Court, S.D. Illinois
STEVEN L. McCOY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER ON JOHNSON-BASED PETITION TO VACATE/CORRECT
SENTENCE UNDER 28 U.S.C. 2255
Michael J. Reagan United States District Judge.
No. 07-cr-30012-MJR (“the underlying case”),
Steven McCoy was indicted on a charge of possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
841. In June 2007, McCoy pled guilty to the charges before
the undersigned District Judge. His written plea agreement
and stipulation of facts are Docs. 37 and 38 in the
underlying case. In October 2007, the undersigned sentenced
McCoy to 200 months in prison, running consecutively to two
sentences McCoy received in state court and was then serving.
Judgment was entered October 5, 2007. No direct appeal was
13, 2016, McCoy filed in this Court a pro se petition to
vacate, set aside, or correct his sentence under 28 U.S.C.
2255, which was opened as the above-captioned civil case. The
petition is based on Johnson v. United States, ___
U.S. ____, 135 S.Ct. 2551 (2015), which found
unconstitutional one provision of the Armed Career Criminal
Act, 18 U.S.C. 924(e)(2)(B)(ii), and Welch v. United
States, ___ U.S. ___, 136 S.Ct. 1257 (2016), which held
Johnson retroactively applicable to cases on
threshold review under Rule 4 of the Rules Governing Section
2255 Proceedings, the undersigned did not summarily dismiss
the petition. The Court ordered briefing but noted one
potential obstacle to relief - the petition might be barred
by a waiver provision contained in the plea agreement. The
threshold review Order also noted that McCoy was not
sentenced under the statute struck down in Johnson.
He was sentenced under the career offender provision of the
United States Sentencing Guidelines (§ 4B1.1(a)), and at
that point in time it was unclear whether the holding of
Johnson extends to the Guidelines.
to Administrative Order 176, the Court appointed the Federal
Public Defender's Office for the Southern District of
Illinois to assist McCoy in presenting any valid
Johnson-based argument. Assistant Federal Public
Defender Daniel G. Cronin entered his appearance on
McCoy's behalf, and briefs were filed as follows: Mr.
Cronin's August 30, 2016 brief on behalf of Petitioner
McCoy (Doc. 4), and the United States' October 24, 2016
response (Doc. 9). Petitioner McCoy was given the opportunity
to file a pro se reply brief by December 1, 2016 but elected
to not do so. The matter is fully ripe. For the reasons
stated below, the Court denies the petition.
Rule 8(a) of the Rules Governing Section 2255 Proceedings,
this Court must determine whether an evidentiary hearing is
warranted. Not every petition warrants a hearing. Boulb
v. United States, 818 F.3d 334, 339 (7th Cir.
2016). See also Martin v. United States,
789 F.3d 703, 706 (7th Cir. 2015) (“It is
well-established that a district court need not grant an
evidentiary hearing in all § 2255 cases, ” such as
where the record conclusively shows the prisoner is not
entitled to relief.); Kafo v. United States, 467
F.3d 1063, 1067 (7th Cir. 2006) (to justify a
hearing, petition must be accompanied by a detailed affidavit
which shows that the petitioner has actual proof of the
allegations going beyond mere unsupported assertions). The
record before this Court conclusively reveals that McCoy is
not entitled to relief, so no hearing is needed.
Timeliness of Petition
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year period of limitations for prisoners to
file petitions seeking to modify or vacate their sentences
under 28 U.S.C. 2255. Usually the period runs from the date
on which the judgment of conviction became final. 28 U.S.C.
2255(f); Clay v. United States, 537 U.S. 522, 524
one-year limitation period is triggered by the latest of four
(1) the date on which the judgment of conviction becomes
(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 from making a motion by such
(3) 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the