United States District Court, C.D. Illinois, Rock Island Division
ELLIS J. LARD, Petitioner,
DARROW UNITED STATES DISTRICT JUDGE.
the Court are numerous motions filed by Petitioner Lard: his
motion to vacate his sentence pursuant to 28 U.S.C. §
2255, ECF No. 1; his motion to correct good time, ECF No. 3;
his motion to review the case docket, ECF No. 8; his motion
to amend or correct his § 2255 motion, ECF No. 9; his
motion for documents, ECF No. 11; his motion for status, ECF
No. 12; and a second motion for status, ECF No. 13. For the
following reasons, his § 2255 petition is DENIED, and,
insofar as the motion to correct good time contains a
separate application for relief via 28 U.S.C. § 2241,
that claim is DISMISSED for lack of jurisdiction. All the
other motions are MOOT.
October 1994, Lard was sentenced to 210 months'
incarceration for a violation of 18 U.S.C. § 922(g)(1)
and 18 U.S.C. § 924(e)(1). On May 16, 2005, Lard filed a
petition for relief from that sentence pursuant to 28 U.S.C.
§ 2255, relying on the then-recent decision in
United States v. Booker, 543 U.S. 220 (2005) to
argue that his sentence was erroneous. The court denied his
claim as untimely.
Lard's instant claim, as represented in his initial
petition, ECF No. 1, and his motion to amend that petition,
ECF No. 9, appears to be a collateral attack on his sentence
pursuant to 28 U.S.C. § 2255, as explained below, his
interleaved requests via motion to correct the good-time
credit calculations made by the Bureau of Prisons
(“BOP”) are more properly understood as a request
for habeas corpus relief pursuant to 28 U.S.C. § 2241.
Courts must construe pro se petitioners' applications for
post-conviction relief liberally, Perruquet v.
Briley, 390 F.3d 505, 512 (7th Cir. 2004), and so the
Court will analyze in their own right the claims properly
understood as brought under § 2241.
Legal Standard on a Motion to Vacate Sentence Under 28 U.S.C.
U.S.C. § 2255, “the federal prisoner's
substitute for habeas corpus, ” Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012), permits a prisoner
incarcerated pursuant to an Act of Congress to seek that his
sentence be vacated, set aside, or corrected if “the
sentence was imposed in violation of the Constitution or laws
of the United States, or . . . the court was without
jurisdiction to impose such sentence, or . . . the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack[.]” 28 U.S.C.
§ 2255(a). See Webster v. Daniels, 784 F.3d
1123, 1124 (7th Cir. 2015) (“As a rule, the remedy
afforded by section 2255 functions as an effective substitute
for the writ of habeas corpus that it largely
replaced.”). When presented with a § 2255 motion,
a district court must hold an evidentiary hearing on the
applicant's claim, and make findings of fact and
conclusions of law. 28 U.S.C. § 2255(b). However,
“[i]t is well-established that a district court need
not grant an evidentiary hearing in all § 2255
cases.” Martin v. United States, 789 F.3d 703,
706 (7th Cir. 2015). The court need not hold a hearing if
“the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). Additionally, if the
judge examining the petitioner's application for relief
does not dismiss the motion after preliminary review, she
must order the United States attorney to file an answer or
other responsive pleading within an appropriate period of
time. S. 2255 R. 4(b).
or successive motions for relief under § 2255 must be
certified by a panel of the appropriate court of appeals
either to contain newly discovered evidence that “if
proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant
guilty of the offense, ” 28 U.S.C. § 2255(h)(1),
or to rely upon a new rule of constitutional law that has
been made retroactive to cases on collateral review by the
Supreme Court, id. § 2255(h)(2).
28 U.S.C. § 2255 Analysis
argues, Pet. 16, that McNeill v. United States, 563
U.S. 816 (2011) requires that his sentence be vacated. He
also suggests that he wants to present new evidence relating
to his underlying conviction. Pet. 19. However, his petition
is successive, since he already sought and was denied relief
under § 2255 in 2005. The current petition has not been
certified by a panel of the appropriate appeals court-the
Seventh Circuit-to contain newly discovered evidence or a new
rule of constitutional law. For that reason, his petition
must be denied. Furthermore, since it appears that the claim
must be denied from the records of the case, it is necessary
neither to order the government to respond, nor to hold an
petitioner may only appeal a district court's final order
on a § 2255 proceeding if a certificate of appealability
issues. See 28 U.S.C. § 2253(c); Fed. R. App.
P. 22(b); Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003). When a district court enters a final order
adverse to the applicant, it must issue or deny a certificate
of appealability. 2255 R. 11(a). A certificate of
appealability will issue only for those matters upon which
“the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make such a showing, the petitioner must
“demonstrate that reasonable jurists could debate
whether [the] challenge in [the] habeas petition should have
been resolved in a different manner or that the issue
presented was adequate to deserve encouragement to proceed
further.” Ouska v. Cahill-Masching, 246 F.3d
1036, 1046 (7th Cir. 2001). The Court finds that reasonable
jurists could not disagree that Lard's petition is
successive, and has not been certified by the Seventh
Circuit. No certificate shall issue.
Legal Standard on an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241
writ of “habeas corpus is available to challenge the
duration as well as the fact of custody.” Waletzki
v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). A
federal prisoner “attacking the fact or the length of
his confinement in a federal prison on the basis of something
that happened after he was convicted and sentenced”
properly does so under 28 U.S.C. § 2241, the statute
that secures to federal courts the power to issue the writ of
habeas corpus. Id. This includes circumstances
where, as here, a petitioner seeks judicial review of
BOP's computation of his period of incarceration. See
Setser v. United States, 132 ...