United States District Court, S.D. Illinois
JAMES B. HANSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT, DISTRICT JUDGE
matter comes before the Court on petitioner James B.
Hanson's response to the Court's July 31, 2017, order
to show cause (Doc. 10) why it should not dismiss the
remaining portion of his motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255 (Doc.
1) as untimely under § 2255(f). Hanson has responded to
the order to show cause (Docs. 12 & 13). He also asks the
Court to appoint counsel and to extend his deadline to
respond to the Court's show cause order (Doc. 11).
preliminary matter, the Court will grant Hanson's motion
for an extension of time (Doc. 11) and will deem his
responses timely. However, it will deny his request for
appointment of counsel (Doc. 11) because, for the reasons
explained below, Hanson's § 2255 is untimely, and
counsel could make no argument that would have a reasonable
chance of convincing the Court otherwise.
December 10, 2009, Hanson pled guilty to one count of
conspiracy to manufacture more than 500 grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A). At sentencing on April 15, 2010, the Court
found that Hanson was a career offender under United States
Sentencing Guidelines Manual (“U.S.S.G.”) §
4B1.1 based on one prior Kentucky felony third degree
residential burglary conviction and one prior Illinois felony
drug conviction. Hanson's career offender status
established a base offense level of 37. His offense level was
reduced by three points under U.S.S.G. § 3E1.1(a) and
(b) to 34 because Hanson timely demonstrated acceptance of
responsibility for his offense. Considering Hanson's
criminal history category of VI, established by his career
offender status under U.S.S.G. § 4B1.1 as well as his
accumulation of criminal history points, this yielded a
sentencing range of 262 to 327 months in prison. The Court
imposed a sentence of 262 months and entered a written
judgment on April 20, 2010. Hanson appealed his sentence, but
on August 25, 2010, the Court of Appeals dismissed the appeal
pursuant to Hanson's motion for voluntarily dismissal.
Hanson filed the pending § 2255 motion on April 18,
August 1, 2017, order (Doc. 10), the Court dismissed
Hanson's § 2255 motion to the extent it was based on
Johnson v. United States, 135 S.Ct. 2551 (2015),
finding that Beckles v. United States, 137 S.Ct. 886
(2017), precluded such a claim. However, the Court construed
Hanson's § 2255 motion to include an argument for
relief based on Mathis v. United States, 136 S.Ct.
2243 (2016). In that order, the Court ordered Hanson to show
cause why his Mathis-like argument should not be
dismissed as untimely under § 2255(f). The Court noted
that it appeared Hanson filed his § 2255 motion beyond
the one year period described in 28 U.S.C. § 2255(f). He
filed his motion on April 18, 2016, more than seven years
after his conviction became final under § 2255(f)(1) on
November 23, 2010, the last day he could have filed a
petition for a writ of certiorari. See Clay v.
United States, 537 U.S. 522, 524-25 (2003); S.Ct. R.
13(1) & (3) (allowing 90 days after a court of appeals
judgment or order to file a petition for a writ of
certiorari). The Court further noted that
Hanson's one-year period to file a § 2255 motion did
not begin to run anew under § 2255(f)(3) with the
Supreme Court's decision in Mathis, issued on
June 23, 2016, because the Supreme Court did not initially
recognize a right in that decision. On the contrary, it came
to a result dictated by its precedent. Mathis, 136
S.Ct. at 2251. Nevertheless, the Court gave Hanson an
opportunity to show cause why the Court should not dismiss
his Mathis-like argument in this § 2255 motion
responses, Hanson does not dispute the Court's
conclusions that this § 2255 motion is too late using
the triggers for the one-year limitation period set forth in
§ 2255(f)(1) and (3). Instead, he argues that §
2255(f)(4) provides the appropriate trigger for his
Mathis-like argument. That provision commences the
one-year period on “the date on which the facts
supporting the claim or claims presented could have been
discovered through the exercise of due diligence.”
Hanson argues that the newly discovered fact he has found is
the district court decision of United States v.
Barnett, No. 06-CR-71-JMH-1, 2016 WL 3983318 (E.D. Ky.
July 25, 2016). In that case, the court held that a Kentucky
conviction for third degree burglary does not qualify as a
violent felony for the purposes of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii).
Id. at *2.
misunderstands § 2255(f)(4). That provision triggers the
one-year limitation period only when a new fact is
discovered or could have been discovered, not when a new
legal decision is discovered by a petitioner or when
a defendant realizes the legal significance of the
facts. See Wilson v. United States, 413
F.3d 685, 687 (7th Cir. 2005); Owens v. Boyd, 235
F.3d 356, 359 (7th Cir.2000). Hanson knew or should have
known the facts underlying his prior burglary conviction at
the time the Court sentenced him in April 2010. That he did
not understand their legal significance until he located
Barnett in 2016 does not revive his one-year
limitation period to file a § 2255 motion.
to Rule 11(a) of the Rules Governing § 2255 Proceedings
and Rule 22(b)(1) of the Federal Rules of Appellate
Procedure, the Court considers whether to issue a certificate
of appealability of this final order adverse to the
petitioner. A § 2255 petitioner may not proceed on
appeal without a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); see Ouska v. Cahill-Masching, 246
F.3d 1036, 1045 (7th Cir. 2001). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see Tennard v.
Dretke, 542 U.S. 274, 282 (2004); Ouska, 246
F.3d at 1045. To make such a showing where the Court denies
relief on procedural grounds, the petitioner must show
“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) (emphasis added);
accord Gonzalez v. Thaler, 565 U.S. 134, 140-141
(2012). Thus, disputes about procedural or statutory issues
in a case cannot justify a certificate of appealability
unless “a substantial constitutional issue lurks in the
background, and the statutory question is independently
substantial.” Ramunno v. United States, 264
F.3d 723, 725 (7th Cir. 2001) (question of a petition's
timeliness) (citing Slack, 529 U.S. at 483-85). The
Court finds that reasonable jurists would not find the
underlying constitutional claims and the procedural
rulings in this case debatable. Accordingly, the Court will
decline to issue a certificate of appealability.
foregoing reasons, the Court:
• GRANTS in part and DENIES in
part Hanson's motion for an extension of time
and for appointment of counsel (Doc. 11). The motion is
GRANTED to the extent it requests an
extension of time to respond to the Court's show cause
order and DEEMS his responses timely. The
motion is DENIED to the extent it requests
appointment of counsel;
• DENIES in part Hanson's §
2255 motion to the extent it relies on a Mathis-like
argument (Doc. 1);
• DECLINES to issue a certificate of
• DIRECTS the Clerk of Court to enter