United States District Court, S.D. Illinois
MEMORANDUM & ORDER
R. Herndon United States District Court Judge.
before the Court is petitioner Antwyne Warren's motion to
reinstate his § 2255 habeas case (Doc.
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).
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). 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).
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
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).
28 U.S.C. § 2255 Standard
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).
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).
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).
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”)
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.