United States District Court, S.D. Illinois
CARTEZ R. BEARD, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
Herndon Judge United States District Court.
Introduction and Background
matter is before the Court on petitioner Cartez R.
Beard's memorandum of law in support of motion to
dismiss, which the Court construed as a motion to reconsider
(Doc. 35). The government filed its response opposing
Beard's motion on April 18, 2018 (Doc. 38). For the
following reasons, Beard's motion is
September 27, 2012, Beard pleaded guilty to being a felon in
possession of a firearm. The predicate felony was Aggravated
Unlawful Use of a Weapon (AUUW), in violation of 720 ILCS
5/24-1.6(a)(1). Beard was sentenced to 96 months
imprisonment. Thereafter, he filed a timely notice of appeal.
On appeal, however, his counsel filed an Anders
brief. The Seventh Circuit agreed with his attorney's
assessment of the case and dismissed the appeal, finding that
no meritorious argument would be successful. Following the
Seventh Circuit's mandate, Beard filed a timely §
2255. Thereafter, Beard moved to amend his § 2255, and
the Court appointed a CJA attorney to assist Beard with the
amendment. Beard argued that he was actually innocent of the
§922(g)(1) conviction based on the invalidity of his
previous sentence for AUUW. Specifically, he argued that his
conviction should be vacated because he was actually innocent
of the conviction for the unlawful possession of a firearm by
a previously convicted felon based on the fact that his prior
Illinois AUUW conviction only carried a presumptive guideline
range of 12 months or less, which was below the statutory
maximum requirement of a crime punishable by a term of
imprisonment of at least a year. The government responded
opposing the § 2255 by arguing that the Seventh
Circuit's decision in Moore v. Madigan, 702 F.3d
933 (7th Cir. 2012), which held that certain provisions of
the Illinois aggravated unlawful use of a weapon statute were
unconstitutional, did not apply to Beard's conviction
because Beard had been sentenced before the Moore
decision's 180-day stay period had ended. The Court
ultimately denied Beard's § 2255 (Doc. 33), and held
that that Beard could not take advantage of the
Moore decision because his sentencing took place
during the stay period before its mandate was issued.
(Id. at 13-14).
April 6, 2018, Beard filed a memorandum of law in support of
motion to dismiss, which the Court construed as a motion to
reconsider (Doc. 35). In said motion Beard argues that he is
no longer a felon within the meaning of Title 18, United
States Code, Section 922(g)(1), because his prior felony
conviction for aggravated unlawful use of a weapon had been
declared void ab initio; therefore, his conviction
should be vacated. Attached to his motion was an order from
the state court showing that, on September 8, 2016, his AUUW
conviction was vacated and declared void ab initio
Law and Analysis
Federal Rules of Civil Procedure do not expressly contemplate
motions to “reconsider.” However, the Seventh
Circuit has held district courts should automatically
consider motions challenging the merits of a district court
order under Rule 59(e) or Rule 60(b). See Mares v.
Busby, 34 F.3d 533, 535 (7th Cir.1994); United
States v. Deutsch, 981 F.2d 299, 300 (7th Cir.1992). A
motion for reconsideration serves the limited function of
allowing a court to correct manifest errors of law or fact or
to present newly-discovered evidence. See Caisse
Nationale de Credit Agricole v. CBI Indus., Inc., 90
F.3d 1264, 1270 (7th Cir.1996). “Relief pursuant to a
motion to reconsider is an ‘extraordinary remed[y]
reserved for the exceptional case.'” Foster v.
DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).
Rule of Civil Procedure 59(e) permits a court to amend a
judgment or order if the movant demonstrates a manifest error
of law or fact or presents newly discovered evidence that was
not previously available. A manifest error of law is the
“disregard, misapplication, or failure to recognize
controlling precedent.” Oto v. Metro. Life
Ins., 224 F.3d 601, 606 (7th Cir. 2000) (quoting
Sedrak v. Callahan, 987 F.Supp. 1063, 1069 (N.D.
Ill. 1997)). To succeed on a Rule 59(e) motion, the movant
must “clearly establish one of the aforementioned
grounds for relief.” Harrington, 433 F.3d at
Federal Rule of Civil Procedure 60, a court may relieve a
party from a final judgment or order based on, among other
reasons, “mistake, inadvertence, surprise, or excusable
neglect, ” newly discovered evidence, or any other
reason justifying relief.Fed.R.Civ.P. 60(b); Musch v.
Domtar Indus., Inc., 587 F.3d 857, 861 (7th Cir. 2009).
“The movant seeking relief under Rule 60(b)(6) must
show extraordinary circumstances justifying the reopening of
a final judgment.” Ramirez v. United States,
799 F.3d 845 (7th Cir. 2015) (citing Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005)). A party invoking Rule
60(b) must claim grounds for relief that could not have been
used to obtain a reversal by means of a direct appeal.
Banks v. Chicago Board of Education, 750 F.3d 663,
667 (7th Cir. 2014).
Beard contends that his felon in possession of a firearm
conviction should be vacated because he is no longer a felon
within the meaning of 18 U.S.C.§ 922(g)(1). Beard argues
that he is no longer a felon after his felony AUUW conviction
was vacated and declared void ab initio on September
8, 2016 (Doc. 35, pg. 10). However, under the laws of this
Circuit, and as pointed out by the government, Beard's
Seventh Circuit previously held in United States v.
Lee that the timing of the restoration of an
individual's civil rights is crucial: “expungement
must predate the possession of a firearm.... In order for a
felon lawfully to possess a firearm, the prior conviction
must be expunged before he possesses the weapon.” 72
F.3d 55, 58 (7th Cir.1995). In Lee, the defendant
was convicted by Indiana in 1988, and he violated §
922(g)(1) in 1994. 72 F.3d at 56. Prior to his federal trial,
but after Lee committed the acts comprising the federal
charges against him, Lee's state conviction was declared
void ab initio-that is “as if he had never
been convicted at all.” Id. Lee asserted that
because this expungement should be given retroactive effect,
he could not have been a felon at the time of his §
922(g)(1) violation. Id. The Seventh Circuit
rejected this argument, holding that the relevant inquiry was
“whether [the defendant's] conviction had been
expunged at the time he committed the § 922(g)
violation-January 1994.” Id. at 58 (citing
United States v. Chambers, 922 F.2d 228, 238-39 (5th
Cir.1991)); See also United States v. Wallace, 280
F.3d 781, 784 n.1 (7th Cir. 2002).
reiterate, the only way for a defendant to avoid an unlawful
possession of a firearm by a previously convicted felon
charge is to have the felony expunged or vacated before he
possesses the firearm in question. Otherwise, the defendant
is still considered a felon for purposes of 18 U.S.C. §
922(g)(1) because he was a convicted felon at the time he
possessed the firearm. Lee, 72 F.3d at 58. At the
time Beard possessed the firearm in 2012, like the defendants
in Lee and Wallace, his AUUW conviction had not been
expunged or rendered void ab initio, and he
satisfied all of the elements of § 922(g).
the Court DENIES Beard's motion for
reconsideration (Doc. 35). Further, because the Court issues
a final order, it will also deny a certificate of
appealability as to the motion for reconsideration. A
certificate of appealability is required before a habeas
petitioner may appeal an unfavorable decision to the Seventh
Circuit Court of Appeals. 28 U.S.C. § 2253(c); FED.
RAPP. P. 22(b). The Court denies a certificate of
appealability, as reasonable jurists would not debate that
petitioner's motion to reconsider fails to warrant
relief. See Slack v. McDaniel, 529 U.S. 473, 484,
120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (stating, “a
habeas prisoner must make a substantial showing of the denial
of a constitutional right, a demonstration that, ...
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were
“adequate to deserve encouragement to proceed
further”) (citation and quotation marks omitted).
for the reasons stated above, the Court denies a certificate
of appealability as to the Court's instant denial ...