United States District Court, C.D. Illinois, Springfield Division
RICHARD MILLS, UNITED STATES DISTRICT JUDGE:
is the Motion of Petitioner Terrence Gailes under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct his Sentence.
as well is the Petitioner's Supplemental Motion for the
entering a plea of guilty to possession with the intent to
distribute 5 or more grams of cocaine base
(“crack”), in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B), Gailes was sentenced by this
Court on August 26, 2011 to 209 months imprisonment. See
United States vs. Terrence Devell Gailes, Case Number
10-30044. At sentencing, the Court determined that the
Petitioner was a career offender based on two prior felony
controlled substance offenses, including Distribution of a
Mixture or Substance Containing Cocaine Base “Crack,
” Central District of Illinois Case Number 92-30052;
and Unlawful Cannabis Trafficking, Sangamon County, Illinois,
Circuit Court, Case Number 01-CF-000660. The Petitioner did
not file a notice of appeal.
reviewing the motion and supplement, the Court concludes that
Petitioner's habeas motion is untimely and must be
Petitioner contends he is entitled to habeas relief because
he says the United States Supreme Court, in Johnson v.
United States, 135 S.Ct. 2551 (2015), ruled that being
in possession of a firearm is not a violent crime. He claims
that this Court used his 2011 conviction of being a felon in
possession of a firearm in determining that Petitioner
qualified as a career offender.
Petitioner is wrong on two counts.
In Johnson, the Court held that “imposing an
increased sentence under the residual clause of the Armed
Career Criminal Act violates the Constitution's guarantee
of due process.” 135 S.Ct. at 2563. Because the
Petitioner was not sentenced under the residual clause of the
Armed Career Criminal Act, Johnson is inapposite.
Therefore, although Johnson announced a new
substantive rule which applies retroactively on collateral
review, see Price v. United States, 795 F.3d 731,
734 (7th Cir. 2015), the Petitioner is not eligible for
relief pursuant to Johnson.
As it earlier stated, the Court did not use the
Petitioner's 2011 firearm conviction in determining he
qualified as a career offender. The Petitioner did plead
guilty to aggravated unlawful use of a weapon by a felon,
Sangamon County Illinois, Circuit Court, No. 08-CF-130, and
was sentenced in 2011 to twelve years in the custody of the
Illinois Department of Corrections, followed by four years of
mandatory supervised release. However, the Petitioner's
career offender status was based on the aforementioned felony
controlled substance offenses. It was not based on the
residual clause of the career offender guideline. Even if he
were sentenced pursuant to the residual clause of U.S.S.G.
§ 4B1.2(a)(1), the Petitioner would be entitled to no
relief because the guidelines are not subject to due process
vagueness challenges. See Beckles v. United States,
137 S.Ct. 886, 897 (2017).
the Petitioner does not qualify for relief pursuant to
Johnson, he did not have one year from that decision
on June 26, 2015 in which to file his habeas motion. A motion
for post-conviction relief under § 2255 is subject to a
one-year period of limitation that generally runs from
“the date on which the judgment of conviction becomes
final.” See 28 U.S.C. §2255(f)(1).
Because he did not file a notice of appeal, the
Petitioner's conviction became final in September of
2011. He filed this habeas motion on May 5, 2016.
Accordingly, the motion is untimely and must be
plain from the motion and the record that Petitioner is
entitled to no relief under Johnson and his habeas
motion is untimely. Because the Petitioner was sentenced as a
career offender based on two prior controlled substance
offenses, the issue of whether the Petitioner is entitled to
relief under Johnson is not one that reasonable
jurists might debate. Accordingly, the Court declines to
grant a certificate of appealability pursuant to 28 U.S.C.
the Petitioner's Motion to Vacate, Set Aside or Correct
his Sentence pursuant to 28 U.S.C. § 2255 [d/e 1] is
Supplemental Motion to Vacate, Set Aside or Correct his
Sentence pursuant to 28 U.S.C. § 2255 [d/e 3] is also
to Rule 11(a) of the Rules Governing Section 2255 Cases, the
Court declines to ...