Odie v. United States, 4:20-CV-04039-KES
| Decision Date | 31 March 2021 |
| Docket Number | 4:20-CV-04039-KES |
| Parties | CLIFTON C. ODIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of South Dakota |
ORDER ALLOWING PETITIONER TO FILE A BRIEF
Petitioner, Clifton C. Odie, filed a petition for writ of habeas corpus under 28 U.S.C. § 2255. Docket 1. The petition was assigned to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B), and this court's March 9, 2015, standing order.
Respondent moves to dismiss Odie's petition under Federal Rule of Civil Procedure 12(b)(6). Docket 13. The Magistrate Judge filed a report and recommendation that recommended appointment of counsel and an evidentiary hearing. Docket 17. Respondent objects to the report and recommendation. Docket 29.
Odie pleaded guilty to conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846.1 CR. Docket 91 at 2. Prior to the change of pleahearing, the government filed notice that it would seek an enhanced sentence under 21 U.S.C. § 851. CR. Docket 101. The enhancement was filed based on Odie's prior drug conviction for "possession of a controlled substance, judgment filed in Cook County, Illinois, on or about November 8, 2000." Id. The plea agreement set forth a 10-year mandatory minimum term of imprisonment with a possible maximum term of life imprisonment and a fine not to exceed $8 million. CR. Docket 91 at 2, 6.
The plea agreement stated Odie agreed that his prior drug conviction was a felony and he agreed to not contest this fact or the enhanced penalty that would result from the conviction. CR. Docket 91 at 6. During the change of plea hearing, Odie was asked whether he admitted he was convicted in 2000 in Cook County, Illinois, for possession of a controlled substance. CR. Docket 181 at 14. Odie's counsel stated Id. Because Odie was not ready to admit that he was convicted of that offense, the court told the parties they would address the issue again before sentencing. Id. Odie agreed. Id.
Odie's factual basis statement did not mention the 2000 felony conviction. CR Docket 92. The presentence report (PSR) at ¶ 50 stated that Odie was convicted in case #00CR0761501 in Cook County, Illinois, of possession of a controlled substance on November 8, 2000, and he was sentenced to three years in prison. CR. Docket 148 at 12. Odie filed objectionsto the PSR but he did not object to this conviction. CR. Docket 137. After resolving the objections to the PSR, the court found that Odie's total offense level was 37 and his criminal history category was III. CR. Docket 179 at 17. As a result, his advisory guideline range was 262-327 months' imprisonment. Id. The PSR did not note grounds for departure. CR. Docket 148 at 21.
During the sentencing hearing on January 3, 2018, Odie's counsel stated that Odie's 2000 Illinois conviction involved distribution of a small amount of marijuana. CR. Docket 179 at 22. The court did not readdress whether Odie admitted to his 2000 Illinois conviction. See id. The court downward varied and sentenced Odie to 240 months of imprisonment. Id. at 37. Odie did not file a direct appeal. He filed his current petition under 28 U.S.C. § 2255 on February 27, 2020, more than two years after being sentenced. See Docket 1. He raises a single issue: that his 2000 Illinois drug conviction did not qualify as a felony drug offense in order to enhance his sentence under 21 U.S.C. § 851(a). Id. at 4.
Respondent moves to dismiss the petition, asserting that Odie's petition is untimely and his claim is procedurally defaulted. Dockets 13, 14. In the report and recommendation, the Magistrate Judge recommended that Odie be appointed counsel and an evidentiary hearing be held. Docket 17 at 29. "[T]he court [cannot] conclude that his claim is procedurally unavailable, either due to statute of limitations or failure to file a direct appeal." Docket 17 at 28. In reaching this conclusion, the Magistrate Judge relied on Odie's argument that his petition was timely filed under 28 U.S.C. § 2255(f)(4) because of theSeventh Circuit Court of Appeals decision in United States v. De La Torre, 940 F.3d 939 (7th Cir. 2019). Id. at 11-19. The Magistrate Judge also recommended that the court hear his procedurally defaulted claim and liberally construed a claim for the petitioner: that his plea was not voluntary. See Docket 17 at 19-29.
Respondent filed objections to the report and recommendation and contends that Odie's petition is not timely under § 2255(f)(4) because the statute "relates to newly discovered facts, not newly discovered circuit court case law." Docket 29 at 5. Respondent also argues that Odie's petition is not timely under § 2255(f)(3) and that his claim is procedurally barred. Id. at 6-9.
The court's review of a Magistrate Judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de novo review, this court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
A. Legal Analysis
Odie contends that his petition is timely under 28 U.S.C. § 2255(f)(4). Docket 1. Section 2255(f)(4) states that the one-year statute of limitations shall run from "the date on which the facts supporting the claim or claims presentedcould have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(4). Odie argues that he filed his petition shortly after the Seventh Circuit decided De La Torre in which the Seventh Circuit found that an Illinois state conviction for felony unlawful possession of a controlled substance under 720 ILCS 570/402(c) did not qualify as a prior felony drug offense for purposes of the § 851 enhancement. Docket 1; De La Torre, 940 F.3d at 949. This is the same statute used to enhance Odie's five-year mandatory minimum to a ten-year mandatory minimum in this case. The Magistrate Judge relied on Odie's argument that his petition was timely under § 2255(f)(4) because De La Torre concluded that a conviction under 720 ILCS 570/402(c) did not qualify as a felony drug offense for a § 851 enhancement. Docket 17 at 11-19.
Respondent objects to the report and recommendation and argues that Odie's petition is not timely, because Odie does not state "new facts" under § 2254(f)(4), but rather is new case law. Docket 29 at 5. In Ingram v. United States, the Eighth Circuit distinguished between a judicial decision and a new fact under § 2255(f)(4). 932 F.3d 1084, 1089 (8th Cir. 2019). "[A] judicial decision interpreting the law does not constitute a 'new fact' for purposes of § 2255(f)(4)." Id. (citing E.J.R.E. v. United States, 453 F.3d 1094, 1098 (8th Cir. 2006)). A new fact is "subject to proof or disproof like any other factual issue." Id. (). "A judicial decision, 'unlike a predicate conviction, is a ruling exclusively within the domain of the courts and is incapable of being proved or disproved.' " Id. at1089-90 ( that because petitioner relied on information contained within the Sentencing Commission's 2011 report as new facts and not the legal decision that followed, his petition was timely under § 2255(f)(4)).
Odie argues that De La Torre is the new fact that makes his petition timely under § 2255(f)(4). Docket 1. In De La Torre, the Seventh Circuit held that Illinois' statute 720 ILCS 570/402(c) was "categorically broader than the federal definition of a felony drug offense" and could not be used to enhance a sentence under § 851. 940 F.3d at 949. Here, the Magistrate Judge recommends that by applying the same categorical approach as the court did in De La Torre, "this court reaches the same conclusion: the elements of the Illinois statute are broader . . . so Mr Odie's 2000 Illinois conviction cannot form the basis of the government's § 851(a) information." Docket 17 at 15. The issue though is not whether the Illinois conviction was properly used to enhance the mandatory minimum sentence that Odie faced, but rather whether the De La Torre decision is a new fact that makes his § 2255 petition timely under § 2255(f)(4).
The Eighth Circuit in Ingram recognized that a judicial decision is not considered a new fact to trigger the timeframe to file a petition under § 2254(f)(4). Ingram, 932 F.3d at 1089-90. Similarly, in E.J.R.E. v. United States, the Eighth Circuit held that a judicial decision, "unlike a predicate conviction, is a ruling exclusively within the domain of courts and is incapable of being proved or disproved." 453 F.3d at 1098. The Second Circuit in McCloud held that a legal decision that altered the legal status of thepetitioner's predicate conviction without amending the conviction itself did not constitute a "new fact" under § 2255(f)(4). McCloud v. United States, 987 F.3d 261, 265 (2d Cir. 2021). "To interpret an intervening decision as a new fact simply because it has new legal implications would create a boundless, and unwarranted, expansion of § 2255(f)(4)." Id. Similarly, the Fourth Circuit in Whiteside held that a legal decision finding the petitioner's "prior drug offenses would no longer qualify as predicate felony conviction for purposes of sentencing enhancements" did not constitute a new fact under § 2255(f)(4). Whiteside v. United States, 775 F.3d 180, 182 (4th Cir. 2014). The Fourth Circuit...
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