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Dixon v. United States

United States District Court, C.D. Illinois, Rock Island Division

June 15, 2017

DEANGELO D. DIXON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SARA DARROW UNITED STATES DISTRICT JUDGE

         Before the Court are Petitioner DeAngelo Dixon's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence, ECF No. 1, and the Respondent the United States' (“the Government”) Motion to Dismiss, ECF No. 4. For the following reasons, the Government's motion is GRANTED and Dixon's motion is DENIED.

         BACKGROUND[1]

         Petitioner DeAngelo Dixon was charged with two counts of Bank Robbery by Force or Violence in violation of 18 U.S.C. § 2113(a) and § 2113(d). Indictment, Cr. ECF No. 1. A jury found him guilty on both counts. Cr. ECF No. 49. Because he had multiple convictions for “serious violent felonies” as defined by 18 U.S.C. § 3559(c)(2)(F)(ii), the Court sentenced Dixon to mandatory life imprisonment on both counts, to be served concurrently, in addition to five years of supervised release for each Count, served concurrently, restitution totaling $36, 704, and a $200 special assessment. Judgment 2-6, Cr. ECF No. 80. Dixon appealed from the sentence, and the Seventh Circuit modified the judgment to reflect that the offense conduct fell under lesser-included offense § 2113(a) rather than § 2113(d). See United States v. Dixon, 790 F.3d 758 (7th Cir. 2015). Dixon's petition for cert to the Supreme Court was denied on November 2, 2015. Dixon v. United States, 136 S.Ct. 425 (2015). At all times relevant to the present motions, Dixon was serving his sentence at the Federal Correctional Complex in Coleman, FL (“FCC Coleman”). He has since been transferred to USP Lee in Jonesville, Virginia. 17-4024 Change of Address Notification, ECF No. 3.

         The Court received and docketed Dixon's first § 2255 motion (Case No. 16-4250) on November 9, 2016. Dixon's motion rests on various ineffective assistance of counsel arguments and a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), see 16-4250 Mot. Vacate 7- 13, ECF No. 1, and requests that the Court vacate Dixon's sentence and conviction and remand the case for a new trial or sentence. Id. at 13. The Motion contains a declaration signed by Dixon under penalty of perjury, stating that he placed the § 2255 motion into the prison mailing system on November 1, 2016. Id. at 6. The envelope was postmarked on November 4, 2016. 16-4250 Envelope, Ex. 1, ECF No. 1-1.

         Dixon then filed another, second § 2255 motion (Case No. 17-4024) with the Court on January 24, 2017. The motion appears to be identical to the first, though Dixon has added a “Supplemental Brief” with an extra legal argument for ineffective assistance of counsel. 17-4024 Mot. Vacate 18, ECF No. 1. In this second case, he submitted a letter motion on February 7, 2017, requesting confirmation that the Court had received his first § 2255 motion, and claiming that he attempted to file a motion for extension of time around October 9 or 10, 2016, but had not received confirmation that it arrived to the Court. See 17-4024 Ltr. Mot., ECF No. 3. The Court did not, in fact, receive a motion for extension of time from Dixon. Dixon alleges that he has been moved into and out of segregated housing and had trouble accessing the jail mail system, but that he was able to deliver his first motion to a prison staff member, who would have made a written log of the date. Id. at 1. Dixon also alleges in the letter motion that he mailed his initial § 2255 motion on or around October 26, 2016. Id. He does not specify which mail system he used to send the first § 2255 motion. Though the envelope has “Legal Work” handwritten across it, there is no other indication on the envelope that a specialized mailing procedure was used.

         On May 10, 2017, the Government filed a Motion to Dismiss and Response to Dixon's motion, arguing that his initial filing was procedurally barred due to untimeliness, both as to his ineffective assistance of counsel claim and his claim based on Johnson v. United States, 135 S.Ct. 2551 (2015).

         DISCUSSION

         I. Legal Standard for Timely Filing

         28 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). The statute established a 1-year time period in which a federal prisoner may file a federal habeas petition, running from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...

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