United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, U.S. District Judge
cause is before the Court on Petitioner Jacklyn Still, a/k/a
Jacklyn Gebhardt's pro se Motion (d/e 1) brought pursuant
to 28 U.S.C. § 2255 (§ 2255 Motion). Because the
Motion is a successive motion that the Court of Appeals has
not granted Petitioner leave to file, the Court dismisses the
Motion for lack of jurisdiction. Even if this Court had
jurisdiction, however, the § 2255 Motion is untimely and
barred by the waiver in Petitioner's plea agreement.
early 2011, Petitioner pled guilty to Mail Fraud (Count 1)
and Unlawful Monetary Transaction (Count 2) pursuant to a
plea agreement in United States v. Still, Case No.
3:11-cr-30016. In the plea agreement, Petitioner waived
several rights, including her right to collaterally attack
her sentence under 28 U.S.C. § 2255. Case No.
3:11-cr-30016, Plea Agreement ¶ 12 (d/e 13). On October
31, 2011, the Court sentenced Petitioner to 108 months on
each of Count 1 and Count 2, to run concurrently; five
years' supervised release on Count 1 and three years'
supervised release on Count 2, to run concurrently; a $200
special assessment, and $4, 548, 049.51 in restitution. Case
No. 3:11-cr-30016, Judgment (d/e 67) (dated November 4,
November 16, 2012, Petitioner filed a motion to vacate, set
aside, or correct her sentence pursuant to 28 U.S.C. §
2255 in Case No. 12-3308. Petitioner raised a claim of
ineffective assistance of counsel, arguing that counsel
failed to have Petitioner evaluated by a psychiatrist or
psychologist prior to sentencing. Case No. 3:12-cv-3308,
Opinion at 6 (d/e 3). Petitioner asserted that, had she been
evaluated, the doctor would have determined that she suffered
from a mental impairment, and the Court would likely have
imposed a lower sentence. Id.
Court reviewed the pertinent provisions of Petitioner's
plea agreement in which she agreed to waive her right to
bring either a direct appeal or a collateral attack of her
conviction or sentence. Case No. 3:12-cv-3308, Opinion at 4
(d/e 3). The Court also reviewed the transcript of
Petitioner's Rule 11 hearing. Id. On January 9,
2013, this Court denied the Motion on the ground that
Petitioner waived her right to bring her § 2255 claim.
Id. at 12.
February 7, 2017, Petitioner filed the § 2255 Motion at
issue herein. Petitioner argues that the 18-level enhancement
to her offense level that she received based on the amount of
loss is unconstitutional because it is based on uncharged
loss amounts. Mot. at 1; see also PSR ¶ 123
(providing 18-level enhancement under U.S.S.G. §
2B1.1(b)(1)(J)). The Government has filed a response (d/e 4),
and Petitioner has filed a reply (d/e 5).
person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Relief under § 2255 is an extraordinary remedy
because a § 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007).
Post-conviction relief under § 2255 is therefore
“appropriate only for an error of law that is
jurisdictional, constitutional, or constitutes a fundamental
defect which inherently results in a complete miscarriage of
justice.” Harris v. United States, 366 F.3d
593, 594 (7th Cir. 2004) (internal quotation marks omitted).
prisoner may not file a second or successive § 2255
motion unless she obtains certification from the Court of
Appeals. 28 U.S.C. § 2255(h). However, not every §
2255 motion filed second-in-time is considered a successive
petition. A second-filed motion is successive only if it
follows a filing that “‘counts' as the
prisoner's first (and only) opportunity for collateral
review.” Vitrano v. United States, 643 F.3d
229, 233 (7th Cir. 2011); see also Potts v. United
States, 210 F.3d 770, 770 (7th Cir. 2000) (explaining
when a previous motion “was the ‘real thing'
that ought to subject the petitioner” to the
limitations the Antiterrorism and Effective Death Penalty Act
places on the filing of successive motions under §
instance, where a petitioner successfully challenged his
sentence pursuant to a § 2255 motion and was
resentenced, his second § 2255 motion challenging his
resentencing did not constitute a second or successive
motion. Suggs v. United States, 705 F.3d 279, 282
(7th Cir. 2013) (noting the general rule but finding, in that
case, that the motion was successive because the petitioner
challenged his underlying conviction, not his resentencing).
Moreover, a habeas petition filed after a court dismissed the
first petition for failure to exhaust state remedies is not a
second or successive petition. Slack v. McDaniel,
529 U.S. 473, 485-86 (2000).
case, Petitioner's first § 2255 motion was denied
because Petitioner waived her right to collaterally attack
her conviction or sentence in the plea agreement.
See Case No. 3:12-cv-3308, Opinion (d/e 3). District
courts in this Circuit have found that such a decision
“counts” as a petitioner's first § 2255
motion. See United States v. Aswege, No. 07-4034,
2007 WL 2700525, at *1-2 (C.D. Ill. July 13, 2007) (finding
that § 2255 motion dismissed as barred by the waiver in
the plea agreement counted as the petitioner's first
§ 2255 motion); United States v. Walker, No.
1:05- CR-70, 2009 WL 5170026, at *1 n.1 (N.D. Ind. Dec. 18,
2009) (noting that, because the court denied the defendant
relief based on the defendant's waiver of his appeal and
post-conviction filing rights, defendant cannot file any
further challenge to his sentence without first obtaining the
permission of the Seventh Circuit). Because Petitioner has
already filed one § 2255 motion, the § 2255 Motion
at issue herein is a successive motion. Petitioner has not
obtained certification to file a successive § 2255
Motion from the Court of Appeals. Therefore, this Court lacks
jurisdiction, and the § 2255 Motion must be dismissed
for lack of jurisdiction.
the Court were to find that the first § 2255 motion did
not count as Petitioner's first and only opportunity for
review, two other grounds warrant denial of Petitioner's
§ 2255 Motion.
Petitioner's § 2255 Motion is untimely. A one-year
period of limitation applies to § 2255 petitions. 28
U.S.C. § 2255(f). The ...