United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge
before the Court is Petitioner Gilliam's Motion (Doc. 1)
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
§ 2255 and Respondent United States' Motion (Doc. 4)
to Dismiss. For the reasons set forth below, Petitioner's
Motion (Doc. 1) is DENIED, Respondent's Motion (Doc. 4)
is GRANTED, and the Court declines to issue a Certificate of
Gilliam was charged on March 21, 2012 in an Indictment
alleging that Gilliam conspired to distribute and possess
with intent to distribute cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), 841 (b)(1)(A), and 846. R. 2.
On August 16, 2013, Gilliam entered into a plea agreement
with the United States whereby Gilliam agreed to, inter
alia, waive his right to collaterally attack his
conviction and sentence in exchange for a plea of guilty to
the lesser included offense of conspiracy to distribute
cocaine base, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 846. R. 146.
sentencing hearing, Gilliam's counsel objected to the
application of the Career Offender enhancement in general
terms, but did not object to any specific prior conviction
used to support the Career Offender designation. The
probation officer's presentence report
(“PSR”) based the Career Offender designation on
at least two prior felony convictions for controlled
substance offenses in Cook County, Illinois. R. 183, at
¶ 73. The Court agreed that Gilliam qualified as a
Career Offender under U.S.S.G. § 4B1.1, resulting in a
guideline range of 188 to 235 months of imprisonment. R. 249.
However, in April 2014 the Court varied downward from the
guideline range and sentenced Gilliam to 120 months of
imprisonment. R. 216. Gilliam then filed an appeal and
multiple collateral attacks, all of which were unsuccessful.
April 28, 2017, Gilliam filed the instant Motion to Vacate,
Set Aside or Correct Sentence under 28 U.S.C. § 2255.
Doc. 1. Therein, Gilliam argues that his Career Offender
designation is invalid under United States v.
Hinkle, No. 15-10067 (5th Cir. 2016), and Mathis v.
United States, 136 S.Ct. 2243 (2016). The United States
filed a Motion to Dismiss, raising objections to
Gilliam's Petition on multiple procedural and substantive
grounds. Doc. 4. This Order follows.
petitioner may avail himself of § 2255 relief only if he
can show that there are “flaws in the conviction or
sentence which are jurisdictional in nature, constitutional
in magnitude or result in a complete miscarriage of
justice.” Boyer v. United States, 55 F.2d 296,
298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268
(1995). Section 2255 is limited to correcting errors that
“vitiate the sentencing court's jurisdiction or are
otherwise of constitutional magnitude.”
Guinan v. United States, 6 F.3d 468, 470 (7th Cir.
1993), citing Scott v. United States, 997 F.2d 340
(7th Cir. 1993). A § 2255 motion is not a substitute for
a direct appeal. Doe v. United States, 51 F.3d 693,
698 (7th Cir. 1995), cert. denied, 116 S.Ct. 205
(1995); McCleese v. United States, 75 F.3d 1174,
1177 (7th Cir. 1996).
prisoners may not use § 2255 as a vehicle to circumvent
decisions made by the appellate court in a direct appeal.
United States v. Frady, 456 U.S. 152, 165 (1982);
Doe, 51 F.3d at 698. Accordingly, a petitioner
bringing a § 2255 motion is barred from raising: (1)
issues raised on direct appeal, absent some showing of new
evidence or changed circumstances; (2) nonconstitutional
issues that could have been but were not raised on direct
appeal; or (3) constitutional issues that were not raised on
direct appeal, absent a showing of cause for the default and
actual prejudice from the failure to appeal. Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992),
overruled on other grounds by Castellanos v. United
States, 26 F.3d 717, 710-20 (7th Cir. 1994).
claims in Gilliam's Petition suffer from numerous
procedural and substantive defects, but the Court will limit
its analysis to just one: Gilliam cannot challenge his Career
Offender designation in a collateral proceeding. Two
decisions from the Seventh Circuit, Hawkins v. United
States, 706 F.3d 820 (7th Cir. 2013) (Hawkins
I), and Hawkins v. United States, 724 F.3d 915
(7th Cir. 2013) (Hawkins II), preclude relief for
Petitioner Gilliam because together they hold a petitioner
may not seek on collateral review to revisit the district
court's calculation of his advisory guidelines range. The
Court is bound by the Hawkins decisions. Given the
interest in finality of criminal proceedings, in Hawkins
I the Seventh Circuit held an erroneous interpretation
of the guidelines should not be corrigible in a
postconviction proceeding so long as the sentence actually
imposed was not greater than the statutory maximum.
Hawkins I, 706 F.3d at 823-25. It specifically
distinguished the advisory guidelines from the mandatory
system in place at the time of Narvaez v. United
States, 674 F.3d 621 (7th Cir. 2011) (holding
Narvaez's improper sentence under the mandatory
guidelines constituted a miscarriage of justice).
moved for rehearing in light of Peugh v. United
States, 133 S.Ct. 2072 (2013), in which the Supreme
Court held the Guidelines were subject to constitutional
challenges “notwithstanding the fact that sentencing
courts possess discretion to deviate from the recommended
sentencing range.” Peugh, 133 S.Ct. at 2082.
The Seventh Circuit denied rehearing because Peugh
was a constitutional case whereas Hawkins I involved
a miscalculated guidelines range, the legal standard in
Peugh was lower than for postconviction relief, and
Peugh's retroactivity was uncertain. Hawkins
II, 724 F.3d at 916-18 (“[I]t doesn't follow
that postconviction relief is proper just because the judge,
though he could lawfully have imposed the sentence that he
did impose, might have imposed a lighter sentence had he
calculated the applicable guidelines sentencing range
correctly.”). Because Gilliam's only challenge in
his Motion is to the district court's calculation of his
advisory guideline range (i.e., the Career Offender
designation), his claim is not cognizable on collateral
review and must therefore be denied.
federal court enters a final order adverse to the petitioner,
“the district court must issue or deny a certificate of
appealability.” Rule 11(a) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts. To obtain a certificate, the petitioner must make
“a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
“Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy §
2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). When a district court denies a petition on procedural
grounds, in order to obtain a certificate, the petitioner
must show both 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 ...