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Findley v. United States

United States District Court, S.D. Illinois

August 31, 2017

JUSTIN D. FINDLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ON JOHNSON-BASED PETITION TO VACATE/CORRECT SENTENCE UNDER 28 U.S.C. 2255

          Michael J. Reagan United States District Judge

         A. Introduction

         In Case No. 13-cr-30106-MJR (the underlying case), Justin Findley was indicted with two co-Defendants, Scott Cookson and Tara Dalton, on narcotics offenses. Ultimately, Findley pled guilty to Count 2 of the indictment, which charged possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B). The plea was pursuant to a written plea agreement and stipulation of facts (Docs. 99-100 in the underlying case). As part of the plea agreement, the United States (the Government) agreed to dismiss another charge against Findley - Count 1, which charged conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. 841 and 846.

         In October 2014, the undersigned sentenced Findley to 188 months in prison (the low end of the advisory U.S. Sentencing Guidelines range of 188-235 months), plus a fine, special assessment, and five years of supervised release. Findley took no direct appeal. Judgment was entered on October 10, 2014.

         On October 8, 2015, Findley filed in this Court a pro se petition to vacate, set aside, or correct his sentence under 28 U.S.C. 2255. Opened as the above-captioned civil case, the petition specifically referenced (Doc. 1, p. 5) the then-recent case of Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). In Johnson, the United States Supreme Court declared unconstitutional one part (the “residual clause”) of a federal statute, the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(2)(B)(ii).[1] More specifically, Johnson teaches that imposition of an enhanced sentence under ACCA's residual clause contravenes due process, because the residual clause provided inadequate notice of what conduct would be penalized thereunder.

         On threshold review under Rule 4 of the Rules Governing Section 2255 Proceedings, the undersigned did not summarily dismiss Findley's petition. Both the petition and the threshold Order noted that Findley was not sentenced under ACCA. Rather, his sentence was based on § 4B1.2(a)(2) of the U.S. Sentencing Guidelines - a provision sometimes referred to as the career offender enhancement. See Presentence Investigation Report (PSR), Doc. 8, pp. 4-5. When Findley filed his § 2255 petition, it was unclear whether the holding of Johnson (which has been extended to residual clauses in other federal sentencing statutes) also covered residual-like provisions in the Sentencing Guidelines.

         Pursuant to Administrative Order 176, the Court appointed the Federal Public Defender's Office for the Southern District of Illinois to assist Findley in presenting any valid Johnson-based argument. Assistant Federal Public Defender Daniel G. Cronin entered his appearance on Findley's behalf, and briefs were filed as follows: Mr. Cronin's December 20, 2016 brief on behalf of Petitioner Findley with supporting documents (Docs. 7-8), the Government's January 17, 2017 response (Doc. 9), Mr. Cronin's January 27, 2017 reply brief (Doc. 10), Petitioner Findley's February 2, 2017 pro se reply brief (Doc. 11), and the Government's April 5, 2017 notice of supplemental authority (Doc. 12). For the reasons stated below, the Court denies the petition.

         B. Evidentiary Hearing

         Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, this Court must determine whether an evidentiary hearing is warranted. Not every petition warrants a hearing. Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016). See also Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (“It is well-established that a district court need not grant an evidentiary hearing in all § 2255 cases, ” such as where the record conclusively shows the prisoner is not entitled to relief.); Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (to justify a hearing, § 2255 petition must be accompanied by detailed affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions). The record before this Court conclusively reveals that Findley is not entitled to relief, so no hearing is needed.

         C. Timeliness of Petition

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year period of limitations for prisoners to file petitions seeking to modify or vacate their sentences under 28 U.S.C. 2255. Usually the period runs from the date on which the judgment of conviction became final. 28 U.S.C. 2255(f); Clay v. United States, 537 U.S. 522, 524 (2003). But the one-year limitation period is triggered by the latest of four events:

(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 exercise of due diligence.

28 U.S.C. 2255(f).[2]

         Findley's judgment in the underlying case was entered on October 10, 2014. His October 8, 2015 petition was filed within one year of that judgment becoming final. Additionally, because McCoy invoked Johnson, he had had one year from the date that decision was announced (June 26, 2015) to file his petition, as § 2255(f)(3) “allows a fresh year from ‘the date on which the right asserted was initially recognized by the Supreme Court, if that right has been … made retroactively ...


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