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 motion has been fully briefed. For the reasons stated
below, the motion is DENIED.
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.
filed an appeal, which he was expressly allowed to do because
his plea agreement explicitly carved out an exception to his
waiver of appeal to challenge his sentence under the FSA.
However, he voluntarily dismissed the appeal. (See
Doc. 13-1, United States v. Liby, No. 12-2454 (7th Cir.
October 24, 2016, Liby filed the instant § 2255 motion
raising four separate grounds for resentencing. The Court
summarily dismissed three of the four in an Order and Opinion
dated November 10, 2016. (See Doc. 3). The Court
noted that the claim it was requiring the Government to
respond to was likely barred by § 2255(f)'s statute
of limitations as well as procedurally defaulted. The
Government has now shown that this is indeed the case and
nothing Liby has presented in his Reply brief can overcome
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.
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).
petitioner may not generally pursue a claim on collateral
review that he failed to raise on direct appeal unless he
demonstrates cause and prejudice or that he is actually
innocent. Massaro v. United States, 538 U.S. 500,
claims that he should be resentenced 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 ...