United States District Court, C.D. Illinois
ORDER & OPINION
BILLY McDADE United States Senior District Judge
matter is before the Court on a Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody filed by Edward Dean Fortune. (Doc. 1). The
motion has been fully briefed. For the reasons stated below,
the motion is DENIED as time-barred.
October 21, 2009, Edward Dean Fortune was charged with
conspiracy to distribute cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846, and
distribution and possession with intent to distribute cocaine
in violation of 21 U.S.C. §§ 841(a)(1) and 841
(b)(1)(C). (Doc. 2-1). On December 3, 2010, Fortune pleaded
guilty to Count 1 of the Indictment. United States v.
Fortune, 09-cr-40082 (C.D. Ill. 2011). On June 6, 2011,
Fortune was sentenced to 300 months in prison. Id.
29, 2014, Fortune's sentence was reduced to 240 months
pursuant to a Rule 35(b) motion filed by the Government.
Id. (Doc. 27). On February 25, 2015, Fortune filed a
Motion for Reduction of Sentence pursuant to 18 U.S.C. §
3852(c)(2). Id. (Doc. 29). On May 15, 2015, the
Court denied Fortune's motion, finding that his sentence
was based on a binding Rule 11(c)(1)(C) plea agreement, not
the U.S. Sentencing Guidelines. Id. (Doc. 31).
23, 2017, Fortune filed the instant § 2255 motion. He
argues that under Mathis v. United States, 135 S.Ct.
2243 (2016), and United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016), the Court erred in determining that
Fortune was a career offender within the meaning of U.S.S.G.
§ 4B1.1(a) and enhancing Fortune's sentence based
off that status. (Doc. 1). The Government has filed its
response (Doc. 3) and Petitioner filed a reply. (Doc. 5).
Thus, this matter is ripe for decision.
2255 of Title 28 of the United States Code provides that a
sentence may be vacated, set aside, or corrected “upon
the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.”
“Relief under § 2255 is an extraordinary remedy
because it asks the district court essentially to reopen the
criminal process to a person who already has had an
opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007). Thus, §
2255 relief is limited to correcting errors of constitutional
or jurisdictional magnitude or errors constituting
fundamental defects that result in complete miscarriages of
justice. E.g., Kelly v. United States, 29
F.3d 1107, 1112 (7th Cir. 1994), overruled on other
grounds by United States v. Ceballos, 26 F.3d 717 (7th
Cir. 1994). “A § 2255 motion is not a substitute
for a direct appeal.” Coleman v. United
States, 318 F.3d 754, 760 (7th Cir. 2003) (citing
Doe v. United States, 51 F.3d 693, 698 (7th Cir.
petitioner may not generally pursue a claim on collateral
review that he failed to raise on direct appeal unless he
demonstrates cause and prejudice or that he is actually
innocent. Massaro v. United States, 538 U.S. 500,
I. Fortune's Motion is Untimely
pleaded guilty to Count 1 of the indictment and was sentenced
to 300 months in prison. Fortune argues that under Mathis
v. United States, 135 S.Ct. 2243 (2016), and United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), this
Court erred in determining that Fortune was a career offender
within the meaning of U.S.S.G. § 4B1.1(a) and enhancing
Fortune's sentence. (Doc. 1). The Court finds that
Fortune's motion is untimely and therefore must be
a § 2255 motion must be filed within one year of the
date the judgment against the petitioner became final. 28
U.S.C. § 2255(f)(1); Clay v. United States, 537
U.S. 522, 527 (2003) (“Finality attaches when this
Court . . . denies a petition for a writ of certiorari, or
when the time for filing a certiorari petition
expires.”). However, § 2255(f)(3) provides that a
§ 2255 motion may be timely if it is brought within one
year of 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. 28 U.S.C. §
Court entered Judgment in this case on June 8, 2011 and
Fortune did not appeal. Fortune's ability to file a
timely § 2255 motion therefore expired in
2012.Fortune incorrectly argues that the Supreme
Court's decision in Mathis gave him a fresh year
to file a § 2255 motion under § 2255(f)(3). But
“Mathis has not been declared retroactive by
the Supreme Court-nor is it a new rule of constitutional
law.” Holt v. United States, 843 F.3d 720, 722
(7th Cir. 2016). Thus, Mathis does not trigger a new
one-year period under § 2255(f)(3). Brooks v.
United States, No. 17-2168, 2017 WL 3315266, *3-*4 (C.D.
Ill. Aug. 3, 2017) (noting that several cases have held that
Mathis does not trigger a new one-year period under
§ 2255(f)(3)); Gulley v. United States, No.
17-2122, 2017 WL 2450178, *4 (C.D. Ill. June 6, 2017) (same).
Fortune's motion is nearly five years too late.