United States District Court, C.D. Illinois, Urbana Division
TERRION D. HERMAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
E. Shadid Chief United States District Judge
the Court are the Petitioner, Terrion Herman's, pro
se Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2255 (D. 1),  the Respondent, the United States
of America's, Response (D. 4), and the Petitioner's
Reply (D. 5). For the reasons set forth below, the
Petitioner's § 2255 Motion is DENIED and the Court
declines to issue a certificate of appealability. This matter
is now terminated.
2010, the Urbana Police Department obtained a search warrant
to search the Petitioner's apartment for illegal
narcotics. Part of the basis for the warrant was a positive
alert by a trained narcotics detection canine on the
Petitioner's door. The canine detected the odor while in
a common hallway of the Petitioner's apartment building.
Officers executed the search warrant, found 93.8 grams of
crack cocaine, and arrested the Petitioner. In 2011, a jury
found the Petitioner guilty of possession of 50 grams or more
of cocaine base with the intent to distribute, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). (Cr.
D. 46). At trial, the Petitioner did argue,
unsuccessfully, that he was entitled to a motion to suppress
evidence. (Cr.D. 19). None of his arguments were based on
grounds that the canine sniff violated his Fourth Amendment
rights. The Court sentenced the Petitioner to life in prison
and a $100 assessment. (Cr. D. 53).
first direct appeal in 2012, the Petitioner did not argue
that his Fourth Amendment rights were violated. Instead, he
challenged his sentence pursuant to Dorsey v. United
States, 567 U.S. 260 (2012). The Seventh Circuit granted
a Joint Motion to Remand in January 2013, specifically for
the purpose of resentencing. (Cr. D. 72). In March 2013, the
Supreme Court ruled that the “government's use of
trained police dogs to investigate the home and its immediate
surroundings is a ‘search' within the meaning of
the Fourth Amendment.” Florida v. Jardines,
569 U.S. 1, 11-12 (2013).
2013, the Petitioner filed a Motion to Reopen Suppression
Proceedings based on the Supreme Court's ruling in
Jardines. (Cr. D. 74). The Court initially granted
the Petitioner's Motion. (Cr. D. 80). The Government
filed a Motion to Reconsider (Cr. D. 81), however, which the
Court subsequently granted, vacating its prior order (Cr. D.
87). The Court explicitly found that there were no
extraordinary facts in the Petitioner's case which
warranted a new suppression hearing. Id. at pp. 2-3.
The Court sentenced the Petitioner to 360 months'
imprisonment. (Cr. D. 89).
November 2014, the Seventh Circuit affirmed the
Petitioner's conviction on his second direct appeal,
noting its prior holding in United State v.
Gutierrez, 760 F.3d 750 (7th Cir. 2014), that
“under circuit law the use of the dog was proper before
Jardines[.]” United States v. Herman,
588 Fed.Appx. 493, 494 (7th Cir. 2014). According to the
Seventh Circuit, this triggered the rule in Davis v.
United States, 564 U.S. 229 (2011), which holds that
“the exclusionary rule cannot be used to suppress
evidence that had been properly seized under authoritative
precedent, even if that precedent later is overruled or
otherwise disapproved.” Id. (citing
Davis, 564 U.S. at 231-32). The Supreme Court denied
the Petitioner's petition for a writ of
certiorari on February 23, 2015. (No. 13-3210).
2016, the Petitioner moved pursuant to 28 U.S.C. § 2255
to have his sentence vacated, set aside, or corrected. (D.
1). Once again, he argued that Jardines applied to
his case, this time in light of the Seventh Circuits recent
ruling in United States v. Whitaker, 820 F.3d 849
(7th Cir. 2016), which applied Jardines.
Id. The Government responded, asserting that the
Petitioner's claim was untimely, not cognizable on
collateral review, and already addressed on direct appeal.
(D. 4 at pp. 7-10).
2255's one-year limitation period starts to run from
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). Accordingly, the
Petitioner's § 2255 Petition must have been filed by
February 23, 2016-one year after the Supreme Court denied his
petition for a writ of certiorari-in order to be
deemed timely. Relevant to the Petitioner's claim here,
the one-year limitation period begins anew only when a right
asserted is newly recognized by the Supreme Court and made
retroactive to cases on collateral review. 28 U.S.C. §
2255(f)(3). Even if Jardines recognized a new right,
it was decided in 2013, clearly more than one year before the
Petitioner filed his present grievance. Likewise,
Whitaker is not a Supreme Court case capable of
starting a fresh clock. Here, the Petition at issue was filed
in June 2016. Therefore, it is not timely and is not properly
before the Court. Thus, the Petition (D. 1) is DENIED.
Court further notes that Rule 11(a) of the Rules Governing
§ 2255 Proceedings directs district courts to either
issue or deny a certificate of appealability when entering a
final order adverse to the applicant. To obtain a certificate
of appealability, a petitioner must make “a substantial
showing of the denial of a constitutional right.” 28
U.S.C § 2253(c)(2). “When the district court
denie[s] a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim,
” a certificate of appealability should issue
“when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here,
no reasonable jurist could conclude that the Petitioner filed
his § 2255 Petition in a timely manner. Accordingly,
this Court will not issue a certificate of appealability.
This matter is now terminated.
 Citations to the Docket in this case
are abbreviated as “D. .”
 Citations to the Docket from
Petitioner's Criminal Case, 10-CR-20003, are abbreviated