United States District Court, S.D. Illinois
ANDRE T. DAVIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on petitioner Andre T.
Davis's response to the Court's July 25, 2017, order
to show cause (Doc. 2) why it should not dismiss his motion
to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 (Doc. 1) as untimely under § 2255(f).
Davis has responded to the order to show cause (Doc. 3), and
the Government has replied to his response (Doc. 4).
December 30, 2013, Davis pled guilty to one count of
distribution of crack cocaine in violation of 21 U.S.C.
§ 841(a) and (b)(1)(C). On April 17, 2014, the Court
found Davis was a career offender based on prior drug felony
convictions and sentenced him to serve 162 months in prison,
below the 20-year statutory maximum. See 21 U.S.C.
§ 841(b)(1)(C). The petitioner did not appeal his
sentence. He filed this § 2255 motion on April 24, 2017.
order to show cause, the Court noted that it appeared Davis
filed his § 2255 motion beyond the one year period
described in 28 U.S.C. § 2255(f). He filed his motion on
April 24, 2017, nearly two years after his conviction became
final under § 2255(f)(1) on May 1, 2014, the last day he
could have filed a notice of appeal. See Clarke v. United
States, 703 F.3d 1098, 1100 (7th Cir. 2013); Fed. R.
App. P. 4(b)(1)(A)(i) (allowing fourteen days after entry of
a criminal judgment to file a notice of appeal). The Court
further noted that Davis'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 v. United States, 136 S.Ct. 2243 (2016),
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.
Id. at 2251. Finally, the Court rejected the notion
that the one-year limitation period began to run under §
2255(f)(4) when Davis later located documents showing he was
seventeen years old at the time of one of his prior
convictions used as a basis for his career offender status.
Nevertheless, the Court gave Davis an opportunity to show
cause why the Court should not dismiss this § 2255
motion as untimely.
response, Davis focuses on the limitation period triggers
found in § 2255(f)(3) and (4). He argues that
Mathis is retroactive on collateral review, so
satisfies the requirements of § 2255(f)(3), and that his
prior conviction for a crime he committed as a
seventeen-year-old was not properly considered in determining
his career offender status.
respect to Mathis, whether it is retroactively
applicable on collateral review is immaterial where it did
not initially recognize a new right, a criterion that must be
satisfied before § 2255(f)(3) commences a new one-year
limitation period . As explained in the Court's order to
show cause, Mathis did not initially recognize a new
right, so the one-year limitation period is not triggered by
that decision. This is true regardless of whether
Mathis is retroactively applicable on a
timely collateral review.
respect to Davis's documents showing he was seventeen
years old when he committed one of his prior drug offenses,
the documents do not amount to new facts that could not have
been discovered earlier through due diligence, so they do not
trigger the one-year limitation period under §
2255(f)(4). As noted in the Court's earlier order, it was
known to the Court and defense counsel, and should have been
known to Davis himself, at the time of sentencing that he
committed one of his prior crimes when he was seventeen years
old. Thus, it is not now a newly discovered fact triggering a
new one-year period to file a § 2255 motion. Whether the
use of that conviction was properly considered to support
career offender status is beside the point if the motion
raising that argument was filed too late.
Davis has failed to show why the Court should not dismiss his
§ 2255 motion as untimely, the Court
DENIES the motion for the reasons explained
in its July 25, 2017, order to show cause (Doc. 2) and noted
in this order. The Court DIRECTS the Clerk
of Court to enter judgment accordingly.
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
DECLINES to issue a certificate of