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Fane v. United States

United States District Court, C.D. Illinois, Springfield Division

August 30, 2019

LEZERICK JERMAINE FANE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE

         This 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 untimely.

         I. FACTS

         In June 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, 2008.

         In the 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.

         At the 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.

         In 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.

         On 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.[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.[2]

         On July 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))).

         II. ANALYSIS

         A 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 final;
(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 governmental action;
(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 ...

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