United States District Court, S.D. Illinois
THEODORE R. HARMON, #57859-060, Petitioner,
B. TRUE, Respondent.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
Theodore Harmon, an inmate currently incarcerated at the
United States Penitentiary located in Marion, Illinois, filed
this action on April 29, 2019, pursuant to 28 U.S.C. §
2241. Harmon asserts that his conviction in United States
v. Harmon, No. 3:12-CR-00187-JGC-1 (N.D. Ohio 2013)
should not qualify as a crime of violence and seeks
resentencing as a nonviolent criminal. (Doc. 1, p. 8). This
case was dismissed on August 2, 2019 because Harmon did not
meet the requirements necessary to challenge to his sentence
and conviction under § 2241. (Doc. 5); Judgment was
entered on the same date. (Doc. 6).
before the Court is a document entitled, “Supplement to
Petitioner's § 2241 Motion” filed by Harmon on
August 12, 2019. (Doc. 7). In the Supplement, Harmon requests
an evidentiary hearing and that his sentence be vacated, set
aside, or corrected. (Id. at p. 20). Because the
Supplement presents additional legal arguments and again
requests relief regarding his sentence, it appears that
Harmon is asking the Court to reconsider the Judgment.
Federal Rules of Civil Procedure do not explicitly
contemplate motions to reconsider. Nevertheless, the Seventh
Circuit has approved of district courts construing motions
pursuant to the standards set forth in Federal Rule of Civil
Procedure 59(e) or 60(b) if it appears that a party is
requesting relief available under those Rules. U.S. v.
Deutsch, 981 F.2d 299, 300 (7th Cir. 1992).
“[W]hether a motion filed within  days of the entry
of judgment should be analyzed under Rule 59(e) or Rule 60(b)
depends on the substance of the motion, not on the timing or
label affixed to it.” Obriecht v. Raemisch,
517 F.3d 489, 493 (7th Cir. 2008). A motion to reconsider
filed more than 28 days after entry of the challenged order
“automatically becomes a Rule 60(b) motion.”
Hope v. United States, 43 F.3d 1140, 1143 (7th Cir.
59(e) allows a court to alter or amend a judgment in order to
correct manifest errors of law or fact or to address newly
discovered evidence. Obriecht, 517 F.3d at 494.
“A ‘manifest error' is not demonstrated by
the disappointment of the losing party. It is the wholesale
disregard, misapplication, or failure to recognize
controlling precedent.” Oto v. Metro. Life Ins.
Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal
60(b) sets forth a more exacting standard than Rule 59(e),
although it permits relief from a judgment for a number of
reasons, including mistake or “any other reason
justifying relief from the operation of judgment.”
Fed.R.Civ.P. 60(b). Relief under Rule 60(b) is an
extraordinary remedy and is only granted in exceptional
circumstances. McCormick v. City of Chi., 230 F.3d
319, 327 (7th Cir. 2000). “Reconsideration is not an
appropriate forum for rehashing previously rejected
arguments.” Caisse Nationale de Credit Agricole v.
CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
Motion fails under both standards. He continues to argue that
he was sentenced as a violent offender under an
unconstitutionally vague statute. He again references the
Supreme Court decisions in Johnson v. United States,
135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138
S.Ct. 1204 (2018), in which the Supreme Court found the
residual clauses of 18 U.S.C. § 924(e)(2)(B) and 18
U.S.C. § 16(b) unconstitutionally vague. He seeks to
apply the ruling in these two decisions to the definition of
“crime of violence” within 18 U.S.C. §
3156(a)(4)(b), and asserts that the residual clause of §
3156 is unconstitutionally vague just like the residual
clauses at issue in Johnson and Dimaya. He
argues that the offenses he was charged with in 18 U.S.C.
§ 2422(b), relied on the definition of “crime of
violence” in § 3156.
Harmon raises new arguments that were not in his initial
§ 2241 petition. He claims he was sentenced to a life
term of supervised release under 18 U.S.C. § 3583(k),
which is unconstitutional under Supreme Court case United
States v. Haymond, 139 S.Ct. 2369 (2019). Furthermore,
he states that his sentence should have been decided by a
jury, citing Alleyne v. United States, 570 U.S. 99
(2013) and Apprendi v. New Jersey, 530 U.S. 466
(2000). (Doc. 7, pp. 13, 14).
does not argue that the judgment entered in this case was
rendered in error or a mistake in some way. He merely
restates reasons why his sentence is unconstitutional. As
discussed in the Dismissal Order, (Doc. 5, p. 4), Harmon
cannot rely on Johnson, Dimaya, Alleyne, and
Apprendi to challenge his sentence pursuant to
§ 2241 because these cases each announced a new rule of
constitutional law, not a rule of statutory construction.
See Simpson v. United States, 721 F.3d 875, 876 (7th
Cir. 2013). Additionally, it is unclear to the Court how
Harmon would have received an enhanced sentence pursuant to
the definition of “crime of violence” as defined
by § 3156, since this statute is contained in the Bail
Reform Act of 1984 and applies to the “release or
detention of an arrested person pending trial, sentence, and
appeal.” David N. Adair, Jr., The Bail Reform Act
of 1984, Fed. Judicial Ctr (2006). To the extent he is
arguing that the definition of “crime of
violence” within the Unites States Sentencing
Guidelines is unconstitutionally vague, this argument fails.
See U.S.S.G. § 4B1.2. The Supreme Court has
held that “the Guidelines are not subject to a
vagueness challenge under the Due Process Clause. The
residual clause in § 4B1.2(a)(2) therefore is not void
for vagueness.” Beckles v. U.S., 137 S.Ct.
886, 892 (2017).
as to Harmon's arguments that his sentence of a lifetime
term of supervised release is unconstitutional, the United
States Supreme Court in Haymond did not declare all
of § 3583(k) unconstitutional, only the portion
requiring the imposition of at least an additional five year
prison sentence for certain supervised release violators, not
the provision of the statute authorizing a term of five years
to life of supervised release for certain offenses.
Haymond, 139 S.Ct. at 2383 (“we have
emphasized, our decision is limited to §
3583(k)…and the Alleyne problem raised by its
5-year mandatory minimum term of imprisonment.”). Not
only did Haymond announce a constitutional ruling
that is more appropriately pursued in a successive §
2255, but the provisions declared unconstitutional are not
implicated in Harmon's case, “as his claim involves
the first sentence of § 3583(k) addressing the initial
imposition of a term of supervised release.”
Jividen v. Streeval, 19-060-HRW, 2019 WL 3976509 at
*4 (E.D. Ky., Aug. 22, 2019).
in the Supplement suggests an error of law or fact under Rule
59(e) in this Court's denial of his petition for habeas
relief; nor has he stated any extraordinary or exceptional
circumstances that would justify relief under Rule 60(b), and
so his request will be denied.
Harmon has not established that the Court made an error of
law or fact or presented an exceptional circumstance that
warrants vacation or amendment of the judgment by the Court,
the Supplement seeking ...