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Warrenn v. United States

United States District Court, S.D. Illinois

November 6, 2017

ANTWYNE WARREN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM & ORDER

          David R. Herndon United States District Court Judge.

         I. Introduction

         Pending before the Court is petitioner Antwyne Warren's motion to reinstate his § 2255 habeas case (Doc. 11).[1] In response to the motion, the government filed a motion to dismiss petitioner's motion for relief pursuant to 28 U.S.C. § 2255 (Doc. 14). Based on the following, the Court DISMISSES for lack of jurisdiction the motion to reinstate the § 2255 (Doc. 11) and GRANTS the government's motion to dismiss (Doc. 14).

         II. Background

         On April 24, 2015, Warren pleaded guilty, pursuant to a plea agreement negotiated with the government. USA v. Warren, 3:13-cr-30170-DRH-2, (Doc. 150).[2] Warren was ultimately sentenced on October 16, 2015, to 120 months total months incarceration on Counts 1, 2, 3, and 6 of the Superseding Indictment (Cr. Doc. 192). Count 1 charged conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and § 846. Count 2 charged attempt to interfere with commerce by robbery in violation of 18 U.S.C. § 1951. Count 3 charged using or carrying firearms in furtherance of a drug trafficking offense or crime of violence in violation of 18 U.S.C. § 924(c). Finally, Count 6 charged possession of a controlled substance in violation of 21 U.S.C. § 844. The Court entered judgment on October 19, 2015. No appeal was filed pursuant to the plea agreement (Cr. Doc. 196).

         Warren filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on June 27, 2016 (Doc. 1). Warren's argument for relief was premised on Johnson v. United States, 135 S.Ct. 2551 (2015). Pursuant to district wide procedure, the Court referred the matter to the Federal Public Defender and directed that the Federal Public Defender file an amended petition (Doc. 2). The FPD reviewed Warren's petition and determined that Warren was sentenced neither as an armed career criminal nor as a career offender, and that he had “no meritorious basis for obtaining relief premised upon Johnson.” (Doc. 5; Cr. Doc. 190 at ¶ 41 - ¶101). Accordingly, the FPD sought to withdraw as counsel (Doc. 5), which the Court granted (Doc. 7). Subsequent to the FPD seeking to withdraw, Warren sought a 45-day extension of time in which to file his own brief seeking relief under § 2255 (Doc. 6). Thereafter, on November 17, 2016, Warren filed a motion to withdraw his § 2255 without prejudice “after reviewing counsel's assessment.” (Doc. 9). The Court granted petitioner's motion and closed the case (Doc. 10).

         Petitioner now seeks to reopen his § 2255 motion, again seeking relief under Johnson and also under United States v. Jenkins, 849 F.3d 390 (7th Cir.), reh'g denied (Apr. 20, 2017), cert. denied, 137 S.Ct. 2280 (2017) (Doc. 11). In response, the government moves to dismiss because petitioner failed to obtain permission to bring a successive § 2255 petition, and because his successive § 2255 petition is untimely (Doc. 14).

         I. 28 U.S.C. § 2255 Standard

         A prisoner may move to vacate, set aside or correct his sentence if he claims “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.” 28 U.S.C. § 2255(a).

         “[R]elief under § 2255 is an extraordinary remedy because it asks the district court to essentially 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, relief under Section 2255 is “reserved for extraordinary situations, ” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)), and “is available when a ‘sentence was imposed in violation of the Constitution or laws of the United States, ' the court lacked jurisdiction, the sentence was greater than the maximum allowed by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008)(quoting 28 U.S.C. § 2255).

         A Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007)(Section 2255 motion is “neither recapitulation of nor a substitute for a direct appeal.”)(citation omitted). As such, if a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal. See Sandoval v. United States, 574 F.3d 847, 850-51 (7th Cir. 2009); Torzala, 545 F.3d at 522. Moreover, unless a movant demonstrates changed circumstances in fact or law, he may not raise issues already decided on direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995).

         Furthermore, in the event of a “second or successive motion” within the meaning of § 2255(h), “[a] second or successive motion must be certified as provided by [28 U.S.C. § ] 2244 by a panel of the appropriate court of appeals” before it may be allowed to proceed. 28 U.S.C. § 2255(h). “From the district court's perspective, [§ 2244(b)] is an allocation of subject-matter jurisdiction to the court of appeals. A district court must dismiss a second or successive petition, without awaiting any response from the government, unless the court of appeals has given approval for its filing.” Nuñez v. United States, 96 F.3d 990, 991 (7th Cir. 1996); see also 7th Cir. Rule 22.2 (providing a procedure for prisoners to seek leave to file a successive motion under § 2255); Melton v. United States, 359 F.3d 855, 856-57 (7th Cir. 2004) (the petitioner's “application in 1997 used up the only collateral attack allowed as of right, and the district court thus lacks jurisdiction to entertain any further collateral proceedings unless this court first grants permission under § 2244 and § 2255”) (citation omitted).

         III. Discussion

         In petitioner's motion to reopen, his argument for relief centers around a claim that his sentence should be vacated under Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (Doc. 11). However, as noted by the government, in substance, the motion is a new § 2255 petition advancing his original Johnson claim, as well as an additional claim based on based on UnitedStates v. Jenkins, 849 F.3d 390 (7th Cir. 2017) (kidnapping is not a crime of violence under the Armed Career Criminal Act (“ACCA”) and cannot serve as a predicate crime of violence to support a conviction under 18 U.S.C. § 924(c)). In response, Warren argues that his motion is a continuation of his first § 2255 petition and he is able to reopen the petition under Rule 60(b)(Doc. ...


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