United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, UNITED STATES DISTRICT JUDGE
cause is before the Court on Petitioner Lezerick Jermaine
Fane's (“Petitioner”) Motion to Vacate, Set
Aside, or Correct Sentence Pursuant to Title 28 U.S.C. §
2255 (“§ 2255 Petition”) (d/e 1).
Petitioner's § 2255 Petition is DENIED because it is
2008, the grand jury charged Petitioner with three counts of
Distribution of a Controlled Substance (Counts 1, 2, and 3)
and one count of Possession of a Controlled Substance (Count
4). Indictment, No. 08-30058, d/e 5. In October 2008,
Petitioner entered a plea of guilty to Counts 2 and 4 of the
Indictment pursuant to a written Plea Agreement. Plea
Agreement, No. 08-30058, d/e 16. The Court entered judgment
on the plea the same day. Minute Entry, No. 08-30058, Oct. 6,
Plea Agreement, the Government agreed to certain sentencing
guideline provisions and agreed to inform the Court of the
nature, extent, and value of Petitioner's cooperation.
Plea Agreement, No. 08-30058, ¶¶ 12-15, 18. In
exchange, Petitioner waived his right to collaterally attack
his conviction and sentence. Id. at ¶ 11.
sentencing hearing held in May 2009, the Court accepted the
Government's request for a downward departure based on
Petitioner's cooperation and sentenced Petitioner to 220
months' imprisonment on each of Counts 2 and 4 to run
concurrently with each other. Minute Entry, No. 08-30058, May
11, 2009. The Court also imposed an eight-year term of
supervised release on each count, dismissed Counts 1 and 3,
and ordered Petitioner to pay a $200 special assessment.
Judgment, No. 08-30058, d/e 24. Petitioner did not appeal.
April 2017, Petitioner filed a Motion for Extension of Time
to File a 28 U.S.C. 2255 Claim. No. 08-30058, d/e 53. In that
motion, Petitioner stated that he intended to file a §
2255 Petition based on Mathis v. United States, 136
S.Ct. 2243 (decided June 23, 2016), but that he needed an
extension of time in which to do so. The Court denied the
Motion for Extension of Time to File a 28 U.S.C. 2255 Claim,
noting that Mathis did not provide a basis for a
§ 2255 Petition. Order and Opinion 2-3, No. 08-30058,
d/e 60. The Court found that Mathis did not announce
a new rule, but, rather, was a case of statutory
interpretation, and therefore did not provide an independent
basis for a § 2255 Petition. Id. Petitioner did
not appeal the Court's decision.
October 16, 2018, Petitioner filed the § 2255 Petition
now before the Court. The § 2255 Petition sets forth
twenty-two separate grounds for relief, many with multiple
sub-parts. Mot. to Vacate, Set Aside, or Correct Sentence 41,
d/e 1. The Government has filed a response to the
§ 2255 Petition, arguing that Petitioner waived his
right to collateral attack as part of his plea agreement, the
petition is not timely, and Petitioner's arguments cannot
succeed on the merits. Resp. 31, d/e 8. Petitioner sought and
was granted leave to file a reply in support of his petition.
Mot. for Extension of Time to File Reply, d/e 10; Text Order,
Dec. 12, 2018; Reply, d/e 12.
10, 2019, the Court granted Petitioner's motion for
reduced sentence under Section 404 of the First Step Act of
2018 and sentenced Petitioner to time served plus two weeks
imprisonment in the custody of the Bureau of Prisons. Minute
Entry, July 10, 2019, No. 08-CR-30058. The Court also reduced
Petitioner's term of supervised to six years and modified
the conditions of supervised release to include six months of
community confinement as a term of supervised release.
Id. Petitioner therefore continues to be in custody,
making him potentially eligible for habeas corpus release.
See Burd v. Sessler, 702 F.3d 429, 435 (7th Cir.
2010) (“Release from prison does not, standing alone,
eliminate the possibility of habeas corpus relief because
mandatory supervised release often entails sufficient
restraints on liberty to meet the ‘in custody'
requirement of habeas corpus.” (citing Cochran v.
Buss, 381 F.3d 637, 640 (7th Cir. 2004))).
one-year period of limitations applies to § 2255
petitions. 28 U.S.C. § 2255(f). The one-year period
begins to run from the latest of:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively