United States District Court, E.D. Wisconsin
ORDER SCREENING PETITION AND DISMISSING THE CASE FOR
LACK OF JURISDICTION
Pamela Pepper United States District Judge
7, 20015, the petitioner and a number of co-defendants were
indicated by a grand jury in the Eastern District of
Wisconsin on drug and gun charges. United States v. Mark
Cubie, et al., 05-cr-146-pp at Dkt. No. 37. The
petitioner entered a conditional guilty plea on October 29,
2007, Dkt. No. 473, but on November 22, 2008, filed a motion
asking for leave to withdraw that plea, Dkt. No. 578. On July
2, 2009, the petitioner was convicted by a jury. Dkt. No.
606. On October 9, 2009, Judge Clevert sentenced the
petitioner to serve a total sentence of 480 months. Dkt. No.
627. Since that time, the petitioner has appealed, and has
filed several post-conviction motions seeking reductions to
his sentence. In particular, on March 13, 2012, he filed a
motion pursuant to 28 U.S.C. §2255, seeking to vacate
his conviction. Cubie at Dkt. No. 701; Orlandes
Nicole Nicksion v. United States, 12-cv-240. On
September 22, 2015, he filed a petition for a writ of
audita querela, which the court construed as a
second (successive) motion to vacate pursuant to 28 U.S.C.
§2255. Cubie at Dkt. No. 782; Orlandes
Nicole Nicksion v. United States, 15-cv-1143.
27, 2016, the plaintiff filed another motion seeking
reductions or changes in his sentence. Cubie at Dkt.
No. 801. The court has directed that that motion be filed as
a §2255 petition, and the clerk's office has done so
as of July 5, 2016. Orlandes Nicole Nicksion v. United
States, 16-cv-856. In this latest petition, the court to
review and rehear the conditions of supervised release
imposed by Judge Clevert in 2009; asks the court to credit to
his sentence any periods of time during which he was on house
arrest, bond, monitoring, or other forms of supervision; and
asks the court to review his sentence generally to determine
whether any recent court cases might serve to render the
sentencing guidelines applied to him inapplicable.
been six and a half years since Judge Clevert sentenced the
petitioner. The deadline for him to appeal his
sentence-including the supervised release conditions and the
application of any credit for time served-has long passed. It
is true that the Supreme Court and the Seventh Circuit have
issued decisions relating to the sentencing guidelines since
the petitioner was sentenced; the petitioner asks the court
to review his sentence in light of "Johnson, S.Ct. and
Welch, S.Ct." Id. at 3. The court assumes that
the petitioner refers to the United States Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), invalidating the residual clause of
the Armed Career Criminal Act, and the Supreme Court's
decision in Welch v. United States, 136 S.Ct. 1257
(April 18, 2016), which made the Johnson decision
retroactive. The petitioner asks the court to review any
sentencing factors Judge Clevert applied to calculate his
guidelines sentence, and to figure out whether either of the
two above decisions might apply to invalidate or reduce any
part of his sentence.
court will dismiss this third §2255 petition. First, as
the court explained in its October 2, 2015 decision
dismissing the petitioner's second petition, Section 2255
prohibits "second or successive motion[s]" unless
Certified . . . by a panel of the appropriate court of
appeals to contain-
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. §22(h).
petitioner did not seek permission from the court of appeals
to file this petition, just as he did not seek permission to
file his last one, and thus the court must dismiss the
petition for lack of jurisdiction. United States v.
Wilburn, No. 14-C-717, 2014 WL 2807539 at *2. (E.D. Wis.
June 20, 2014) (citing Nunez v. United States, 96
F.3d 990, 991 (7th Cir. 1996)).
the court notes that the petitioner could have raised his
arguments regarding the terms of his supervised release and
the question of sentence credit in his appeal and in his
first §2255 petition. He did not, and thus even if the
court were not required to dismiss this petition for lack of
jurisdiction, it would dismiss those claims because the
petitioner defaulted on them.
plaintiff's request that the court review his sentence
under Johnson and Welch might appear to
fall under §2255(h)(2), and certainly the petitioner may
ask the Seventh Circuit for permission to file a second or
successive habeas raising that claim. If he plans to
ask the Seventh Circuit for permission to file a successive
appeal on that issue, he should review the Seventh
Circuit's Rule 22.2, which lays out the requirements for
such a petition. The court sent the petitioner a copy of that
rule with the October 2, 2015 order.
petitioner may wish to appeal this court's dismissal of
his July 5, 2016 petition. To do so, he must obtain a
certificate of appealability from the district court or the
court of appeals. Fed. R. App. P. 22(B); 28 U.S.C.
§2253(c)(1). "That is true even when a movant is
appealing from the dismissal of an unauthorized second or
successive motion." Wilburn, 2014 WL 2807539 at
*2 (citing Sveum v. Smith, 403 F.3d 447, 448 (7th
Cir. 2005)). This court declines to issue a certificate of
appealability, because it concludes that no "reasonable
jurists could debate whether . . . the petition should have
been resolved in a different manner." Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). See
also, 28 U.S.C. §2253(c). The petitioner may, if he
chooses to do so, seek a certificate of appealability from
the Seventh Circuit Court of Appeals under Fed. R. App. P.
22. See also Rule 11 of the Rules Governing
court ORDERS that the July 5, 2016 motion to vacate, set
aside or correct sentence (Case No. 16-cv-856) is DISMISSED
for lack of jurisdiction (Dkt. No. 1). The court directs the
clerk of court to enter judgment ...