United States District Court, S.D. Illinois
JUSTIN D. FINDLEY, Petitioner,
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
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.
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,
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). 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.
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
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.
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.
Timeliness of Petition
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
(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
(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).
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 ...