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Liby v. United States

United States District Court, C.D. Illinois

April 6, 2017

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 motion has been fully briefed. For the reasons stated below, the motion is DENIED.

         BACKGROUND

         Liby 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.

         Liby 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. 2012)).

         On 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 these hurdles.

         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).

         A 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, 504 (2003).

         DISCUSSION

         Liby 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 ...

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