Stewart v. United States

• Decision Date: 05 February 2015
• Docket Number: Case No. 15–CV–73–JPS.
• Citation: 89 F.Supp.3d 993
• Parties: Jermaine STEWART, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

89 F.Supp.3d 993

Jermaine STEWART, Petitioner

v.UNITED STATES of America, Respondent.

Case No. 15–CV–73–JPS.

United States District Court, E.D. Wisconsin.

Signed Feb. 5, 2015.

Jermaine J. Stewart, Glenville, WV, for Petitioner.

Erica N. O'Neil, William J. Lipscomb, United States Department of Justice, Milwaukee, WI, for Respondent.

ORDER

J.P. STADTMUELLER, District Judge.

The petitioner, Jermaine Stewart, pled guilty to one count of an indictment charging him with conspiracy to distribute one kilogram or more of heroin, resulting in death. (See, e.g., Case No. 08–CR–197, Docket # 587, # 603). On March 1, 2011, the Court sentenced Mr. Stewart to a term of imprisonment of 300 months. (Case No. 08–CR–197, Docket # 832, # 833). Mr. Stewart appealed, but, on July 3, 2013, the Seventh Circuit affirmed his conviction. (See Case No. 08–CR–197, Docket # 928). Mr. Stewart requested rehearing en banc, but the Seventh Circuit denied that request in an order dated August 23, 2013. (See Case No. 08–CR–197, Docket # 930).

On January 20, 2015, Mr. Stewart filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. (Docket # 1). That motion is now before the Court for screening:

If it plainly appears from the motion, any attached exhibits, and the record of the prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States Attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

Rule 4(b), Rules Governing § 2255 Proceedings.

1. TIMELINESS

The Court begins by addressing the timeliness of Mr. Stewart's motion.

1.1 Untimeliness Under 28 U.S.C. § 2255(f)(1)

28 U.S.C. § 2255(f) provides that there is a one-year limitations period in which to file a motion seeking 28 U.S.C. § 2255 relief. That limitations period typically runs from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). “Finality attaches when [the Supreme Court] affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003).

In this case, it does not appear that Mr. Stewart filed a certiorari petition with the Supreme Court (he has not informed the Court that he ever filed such a petition, nor can the Court locate a petition bearing Mr. Stewart's name in the Supreme Court's docketing system). Thus, Mr. Stewart's conviction became final at the expiration of the 90–day time period to file a certiorari petition. See Sup.Ct. R. 13(1). However, because Mr. Stewart filed a request for a rehearing en banc, the 90–day period did not begin to run until that request was denied. See Sup.Ct. R. 13(3). The Seventh Circuit denied that request on August 23, 2013. (Case No. 08–CR–197, Docket # 930).

Thus, his conviction became final on November 21, 2013, which was 90 days after the denial of his request for rehearing en banc. Accordingly, under 28 U.S.C. § 2255(f)(1), Mr. Stewart's motion was due within one year: on or before November 21, 2014. In filing it on January 20, 2015 (Docket # 1), Mr. Stewart is two months too late.

1.2 Potential Exceptions to Untimeliness

That is not the end of the analysis, though, because there are a number of statutory and common-law exceptions that may apply to make Mr. Stewart's petition timely.

1.2.1 Statutory Exceptions

The Court begins with the statutory exceptions. 28 U.S.C. § 2255(f) provides a number of other circumstances in which the one-year limitations period may begin to run later than the date on which the conviction becomes final. See 28 U.S.C. §§ 2255(f)(2–4). It does not appear that any of those exceptions apply in this case, though.

1.2.1.1 28 U.S.C. § 2255(f)(2)

The first exception applies in situations where there was some impediment to making the motion caused by the government. 28 U.S.C. § 2255(f)(2). Mr. Stewart does not mention anything that could be construed as government action that prevented him from filing his motion. (See Docket # 1). Thus, the Court will not apply 28 U.S.C. § 2255(f)(2) to Mr. Stewart's motion.

1.2.1.2 28 U.S.C. § 2255(f)(3)

The second statutory exception applies when the Supreme Court has recognized a new right and made it retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3). It is the most promising of the statutory exceptions for Mr. Stewart, but again the Court is obliged to find it is inapplicable. The Court does note that two of Mr. Stewart's grounds for relief relate to recent Supreme Court cases, but ultimately concludes that neither ground triggers 28 U.S.C. § 2255(f)(3)'s later starting date.

Mr. Stewart's first ground is that the drug he distributed was not an independently sufficient cause of death or injury. (Docket # 1 at 4). This argument relates to the Supreme Court's recent decision in Burrage v. United States, decided on January 27, 2014, holding that a defendant cannot be liable for the death-results enhancement provision unless the use of the drug supplied was a but-for cause of the death. Burrage v. U.S., ––– U.S. ––––, 134 S.Ct. 881, 892, 187 L.Ed.2d 715 (2014). But several courts have already found that Burrage did not announce a new rule of constitutional law and that, even if it had, the Supreme Court did not make Burrage retroactively applicable. See, e.g., In re: Carlos Alvarez, No. 14–10661–D at 3 (11th Cir. Mar. 6, 2014) (petitioner not allowed to file second or successive § 2255 motion because the Supreme Court “did not expressly hold that Burrage is retroactive on collateral review.”); United States v. Bourlier, No. 3:14cv609, 2014 WL 6750674 at *2 (N.D.Fla. December 1, 2014) ; Alvarez v. Hastings, No. CV214–070, 2014 WL 4385703 at *1 (S.D.Ga. Sep. 5, 2014) ; De La Cruz v. Quintana, No. 14–28–KKC, 2014 WL 1883707 at *6 (E.D.Ky. May 1, 2014) ; Taylor v. Cross, No. 14–CV–304, 2014 WL 1256371 at *3 (S.D.Ill. Mar. 26, 2014) ; Powell v. United States, No. 3:09–CV–2141, 2014 WL 5092762 at *2 (D.Conn. Oct. 10, 2014). Thus, Burrage does not trigger 28 U.S.C. § 2255(f)(3)'s application.

The other potential 28 U.S.C. § 2255(f)(3) trigger is Mr. Stewart's third ground: that he is actually innocent. This could relate to McQuiggin v. Perkins, ––– U.S. ––––, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013), which discussed actual innocence as a gateway for untimely petitions. But the Supreme Court has never recognized actual innocence as a cognizable, standalone habeas claim, so the Court would be reluctant to find that it announced a new and retroactively-applicable right. See, e.g., Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) ; McQuiggin, 133 S.Ct. at 1931 (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”). In any event, the Supreme Court decided McQuiggin on May 28, 2013—before the Seventh Circuit's action on Mr. Stewart's appeal. So, even if the limitations period ran from the issuance of McQuiggin, Mr. Stewart's motion would still be untimely. 28 U.S.C. § 2255(f)(3).

1.2.1.3 28 U.S.C. § 2255(f)(4)

The final statutory exception applies when the facts supporting a claim could not have been discovered earlier. 28 U.S.C. § 2255(f)(4). But, again, that exception does not apply in this case because Mr. Stewart does not allege that there is any newly-discovered evidence in this case.

In sum, none of the exceptions to 28 U.S.C. § 2255(f)(1)'s general rule apply in this case. Accordingly, the Court is obliged to determine that 28 U.S.C. § 2255(f)(1) applies, making Mr. Stewart's motion untimely.

1.2.2 Common Law Exceptions

There are two other potentially-applicable common law exceptions that may apply to make Mr. Stewart's motion timely.

1.2.2.1 Actual Innocence

The first of those exceptions is the “actual innocence gateway” recognized in McQuiggin. See ––– U.S. ––––, 133 S.Ct. 1924, 185 L.Ed.2d 1019. To determine whether this exception applies, the Court must decide whether Mr. Stewart offers “new evidence” that would be sufficient to make a credible claim for actual innocence; he does not. See Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (claim of actual innocence “requires a petitioner to support his allegations of constitutional error with new reliable evidence.”). In fact, Mr. Stewart does not satisfy either portion of that formulation: he does not offer new evidence and it is clear that he is not actually innocent of the crime of which he was convicted.

As to new evidence, Mr. Stewart does not even allege that there is any new evidence in this case. So he clearly fails that requirement.

Even if Mr. Stewart presented new evidence, though, he would also have to show that the new evidence supported a “credible” claim for actual innocence, which requires a showing that “it is more likely than not that no reasonable juror would have convicted him,” in light of the evidence. See, e.g., id.; McQuiggin, 133 S.Ct. at 1927. He clearly could not do that in this case.

To begin, the Court found and the Seventh Circuit agreed that Mr. Stewart was responsible for distributing the drugs that caused the victims' deaths:

In this case, it is clear that Stewart's actions and conduct led to the victims' deaths. He supplied his distributors and relied upon them to resell to end users. It was certainly understood that recipients of drugs Stewart provided would resell, share, or otherwise offer the drugs to unknown or unauthorized users. Like our sister circuits, we acknowledge that our analysis might differ if a defendant's participation in the chain of distribution is especially removed from a victim's resulting death, as in the cases of Walker and Gladney. In such cases, “a court might conclude that it would not be consistent with congressional intent to

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