United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
the Court is Defendant's pro se motion styled
“Motion 35(a) to vacate or correct Illegal Sentence.
This motion is not to be misconstrued as a second successive
or a 60(d) motion and to be ruled on the merits of the
issues.” (Doc. 1187). The Court finds that the motion
would be time-barred under Federal Rule of Criminal Procedure
35(a). Also, notwithstanding Defendant's statement that,
“[this] motion is not to be misconstrued as a second
successive or a 60(d) motion and to be ruled on the merits of
the issues, ” the Court further finds that the motion
is in fact actually a Petition for Relief under 28 U.S.C.
§ 2255, and is barred as successive. Therefore, the
motion is DENIED.
March 2007, a jury convicted Defendant Gerald Howliet on
three counts: possession with intent to distribute cocaine
base, possession with intent to distribute heroin and being a
felon in possession of a firearm. (Docs. 701-703). In
September 2007, Howliet was sentenced to concurrent terms of
life, 360 months and 120 months in prison. (Doc. 867). He
appealed, and his conviction was upheld in 2008. (Doc. 923).
In 2009, Howliet filed a Habeas Petition pursuant to 28
U.S.C. § 2255, which included a challenge to the
validity of the search warrant issued in his criminal case.
Howliet v. United States of America, Case No.
3:09-cv-00488-GPM (S.D. Ill.). The Petition was denied, and
both the District Court and the Seventh Circuit Court of
Appeals denied a certificate of appealability. Id.
filed the current motion in January 2017, more than five
years after the Seventh Circuit issued its mandate on his
first Habeas Petition. (Doc. 1187). He seeks to challenge his
sentence as the result of an alleged violation of the Fourth
Amendment, due to defects surrounding a search warrant.
Specifically, he alleges that the case number assigned to the
search warrant was “bogus.” (Id. at
¶¶ 5-6). Apparently, the Court was subsequently
unable to locate the file for that miscellaneous case number,
although a copy of the search warrant was provided to him.
(Docs. 465-1, 1140). Howliet asserts that this renders the
search warrant improper, and asks that his sentence be
vacated unless the Government can prove the warrant was
“registered at the Court house.” (Doc. 1187 at
initial matter, the motion is improperly brought under
Federal Rule of Criminal Procedure 35(a). The current Rule
35(a) provides that “[w]ithin 14 days after sentencing,
the court may correct a sentence that resulted from
arithmetical, technical, or other clear error.” Howliet
was sentenced more than ten years ago and is therefore
outside the time limit for altering his sentence under the
current Rule. Howliet may be relying on an older version of
Rule 35(a) which “allow[ed] for the correction at any
time of an illegal sentence imposed for offenses committed
before the effective date of the Sentencing Reform Act
(November 1, 1987).” United States v. Boyd,
591 F.3d 953, 955 (7th Cir. 2010). However, because the
crimes for which Howliet was convicted were committed in
2003, the older version of the rule is inapplicable. (Doc. 1,
appears that Howliet is actually attempting to assert a
second § 2255 claim under a different guise so as to
avoid the requirements and restrictions imposed on filing
such successive petitions-indeed, his insistence in the title
of the motion that this is not a “second
successive” suggests that this is his intent. Moreover,
the Court will look past the title of a motion and treat it
according to its true nature, under the principle that
substance trumps form. See Boyd, 591 F.3d at 955
(construing a purported Rule 35(a) motion as a second
successive § 2255 petition).
Rule 4(b) of the Rules Governing § 2255 Proceedings in
United States District Courts, a judge receiving a §
2255 petition must conduct a preliminary review and,
“[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving
party.” Here, a preliminary review of the motion
demonstrates that it must be dismissed as an unauthorized
second or successive habeas petition.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) “governs § 2255 proceedings
and imposes tight limits on second or successive
petitions.” Vitrano v. United States, 721 F.3d
802, 806 (7th Cir. 2013) (citing Suggs v. United
States, 705 F.3d 279, 285 (7th Cir. 2013)). The AEDPA
“allows every prisoner one full opportunity to seek
collateral review.” Vitrano, 721 F.3d at 806
(quoting Johnson v. United States, 196 F.3d 802, 805
(7th Cir. 1999)). Any additional, later-filed petition under
§ 2255 is a “second or successive” motion,
which a district court may not entertain “unless the
prisoner has first obtained authorization to file from the
court of appeals.” United States v. Obeid, 707
F.3d 898, 901 (7th Cir. 2013) (citing 18 U.S.C. §§
previously filed a § 2255 petition and received a full
round of collateral review. The instant habeas petition is
his second attempt at relief under § 2255, which
requires prior approval from the Seventh Circuit. There is no
indication, however, that he has sought permission from the
Seventh Circuit to file successive § 2255 petitions.
Therefore, this Court is without jurisdiction to consider the
pending motion under § 2255 and it is
DENIED. Obeid, 707 F.3d at 901
(citing Nuñez v. United States, 96 F.3d 990,
991 (7th Cir. 1996)).
the Court treated this motion as one for habeas relief, it
will address appealability as well. Rule 11(a) of the Rules
Governing Section 2255 Proceedings instructs the district
court to “issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.”
A certificate of appealability may issue only if the
petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To meet this requirement, the petitioner must
“demonstrate that reasonable jurists would find the
district court's assessment of his constitutional claims
debatable or wrong.” United States v. Fleming,
676 F.3d 621, 625 (7th Cir. 2012) (quoting Tennard v.
Dretke, 542 U.S. 274, 281 (2004)). The petitioner need
not show that his appeal will succeed, but he must show
“something more than the absence of frivolity” or
the existence of mere “good faith” on his part.
Miller-El, 537 U.S. at 337, 338.
Howliet did not obtain leave to file a successive § 2255
petition. Thus, he is not entitled to issuance of a
certificate of appealability.