United States District Court, C.D. Illinois, Peoria Division
WALLACE N. PUGH, Petitioner,
PAUL THOMPSON, Acting Warden of FCI Pekin, Respondent.
MEMORANDUM OPINION & ORDER
BILLY McDADE United States Senior District Judge.
matter is before the Court on the Petitioner's Motion For
Reconsideration Pursuant to Federal Rule of Civil Procedure
59(e) (Doc. 12). For the reasons that follow, the motion is
motion to alter or amend judgment filed pursuant to Rule
59(e) may only be granted if a movant clearly establishes
that the court made a manifest error of law or fact, or
presents newly discovered evidence. LB Credit Corp. v.
Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir.
1995). A manifest error is the “wholesale disregard,
misapplication, or failure to recognize controlling
precedent.” Oto v. Metro. Life Ins. Co., 224
F.3d 601, 606 (7th Cir. 2000) (internal quotation marks
April 29, 2015, Petitioner entered into a plea agreement with
the Government, in which Petitioner agreed to plead guilty to
the offense of possessing 28 or more grams of crack cocaine
with the intent to distribute it in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B). (See Doc. 11, No.
2:14-cr-20075-CSB-DGB (C.D. Ill.)). The agreement noted that
notice had been previously given pursuant to 21 U.S.C. §
851. Indeed, on April 8, 2015, the Government filed a Notice
of Prior Convictions that had the potential to subject
Petitioner to an enhanced sentence. (See Doc. 10, No.
2:14-cr-20075-CSB-DGB (C.D. Ill.)). The agreement provided
that Petitioner could face a sentence of anywhere between a
mandatory minimum of ten years and a maximum of life
imprisonment. The agreement also provided that Petitioner
understood that the Court was not bound by any
recommendations of the parties and was free to impose
whatever sentence it deemed appropriate up to the statutory
maximum. The agreement also provided that Petitioner was
knowingly and voluntarily waiving the right to appeal and to
collaterally attack any and all issues relating to the plea
agreement and conviction and to the sentence. (Doc. 11 at
11-12, No. 2:14-cr-20075-CSB-DGB (C.D. Ill.)). Petitioner
affirmed under oath before his sentencing court that he was
knowingly and voluntarily pleading guilty. He was found to be
competent to enter his plea of guilt, advised of his rights,
charges and possible penalties in open court. The sentencing
court accepted the written plea agreement.
had at least two “controlled substance offenses”
prior to his federal conviction. The term “controlled
substance offense” means an offense under federal or
state law, punishable by imprisonment for a term exceeding
one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.
U.S.S.G. §4B1.2. In 2002, Petitioner pled guilty to the
Illinois offense of possession of a controlled substance with
intent to deliver, for which he was sentenced to four and a
half years' incarceration. (Doc. 8 at 9). In 2007,
Petitioner pled guilty to the Illinois offense of possession
of a controlled substance with intent to deliver again, for
which he was sentenced to seven years' incarceration.
(Doc. 8 at 10). These offenses were listed in
Petitioner's presentence report. No objection was made to
the presentence report. (Doc. 8 at 22). The presentence
report recommended a guidelines imprisonment range of 262
months to 327 months. (Doc. 8 at 18). However, the court
sentenced Petitioner to a term of 204 months imprisonment.
(Doc. 6-1 at 4).
January 9, 2017, Petitioner filed a petition under §
2241 attacking his sentence on the grounds that his
career-offender predicates do not qualify under U.S.S.G.
§§ 4B1.1 and 4B1.2 under the precedent of the
recent cases Mathis v. United States, 136 S.Ct. 2243
(2016) and United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016). The Court denied the motion as it found that
Petitioner was bound by a collateral relief waiver he made as
part of his plea agreement. It also found that Petitioner
could not make use of a § 2241 petition in lieu of a
§ 2255 motion because Petitioner had failed to satisfy
the requirements of In re Davenport, 147 F.3d 605
(7th Cir. 1998). Finally, the Court found that
Petitioner's substantive failed anyway as the Illinois
controlled substance offenses were not broader than the
controlled substance offense definition provided for in the
argues now on reconsideration, for the first time in this
litigation, that the Court should not enforce the collateral
relief waiver Petitioner agreed to as part of his plea
agreement. He argues that he is not bound by the waiver
because he can show cause and prejudice for his procedural
default. Petitioner conflates the separate issues of waiver
and procedural default, and he also misunderstands what is
required when requesting reconsideration.
a party may not ask for reconsideration on grounds that could
have been presented earlier, but were not. United States
v. 47 West 644 Route 38, Maple Park, Illinois, 190 F.3d
781, 783 (7th Cir. 1999) (“A party may not introduce
evidence or make arguments in a Rule 59 motion that could or
should have been presented to the court prior to
judgment.”) cited by Gibson v. Kreischer, No.
15-CV-783-BBC, 2016 WL 3748650, at *1 (W.D. Wis. July 8,
2016). Petitioner should have addressed waiver in his
petition. He failed to do so. That was excusable. After the
Government raised the issue in its Response, the Petitioner
should have addressed it in his “Traverse.” Yet
he did not. That was inexplicable. Now he seeks to litigate
the issue having failed to address it twice before and once
it has been decided against him. This is unallowable.
Mungo v. Taylor, 355 F.3d 969, 978 (7th Cir. 2004)
(“Arguments raised for the first time in connection
with a motion for reconsideration, however, are generally
deemed to be waived.”). In any event, Petitioner still
has failed to address any of the exceptions to enforcing a
collateral relief waiver, all of which were laid out for his
review by the Government in its Response. (See Doc.
6 at 14-15).
Petitioner cannot show any cause and prejudice because the
Court specifically found that the substance of his claims was
without merit. The Illinois controlled substance offenses for
which Petitioner was convicted and which were used to find
him to be a career offender, were not broader in scope than
the “controlled substance offense” definition
provided for in the Guidelines. (See Doc. 10 at 7).
Moreover, since he was sentenced within the statutory range
and below the calculated guideline range for an offense to
which he pled guilty, he can hardly be heard to claim that
his sentence was a miscarriage of justice.
and more to the point of the standard of a motion for
reconsideration, Petitioner does not contend anywhere in his
motion that the Court made any manifest errors of fact ...