United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
Eugene Shields has moved for post conviction relief under 28
U.S.C. § 2255, seeking correction of the sentence
imposed on him after he was convicted of distributing heroin
and cocaine. He believes that his sentence was calculated
improperly, but a review of his motion shows no basis for
this belief and, in any event, the time has passed in which
he could file a post conviction motion. Accordingly, his
motion for post conviction relief must be denied.
was charged in 2013 with four counts of knowingly and
intentionally distributing a mixture or substance containing
heroin and knowingly and intentionally distributing a mixture
or substance containing cocaine. He entered a plea of guilty
to one charge of distributing both heroin and cocaine, in
violation of 21 U.S.C. § 841(a) and (b)(1)(C), and was
sentenced on February 11, 2014 to a term of 110 months. The
probation office determined that petitioner was a career
offender under § 4B1.1 of the United States Sentencing
Guidelines. He was at least 17 years old at the time he
committed the charged offense; his offense was a controlled
substance offense; and he had at least two prior felony
convictions at the time he committed this offense: a 2001
conviction for unlawfully selling a narcotic drug for which
the maximum term of imprisonment is 20 years, in violation of
Minn. Stat. § 152.023, subd. 1(1), and a 2004 conviction
for possession with intent to deliver more than 40 grams of
cocaine, in violation of Wis.Stat. § 961.41(1m)(cm).
sentencing, petitioner's offense level was 34 and his
advisory guideline imprisonment range was 188 to 235 months.
He was given a reduced sentence of 110 months, for two
reasons: to mitigate the disparity between the sentences for
crack cocaine and powder cocaine offenses and to recognize
the absence of any violent offenses in his background.
did not appeal from his sentence. However, he filed a motion
for reduction of the sentence, together with a motion for
appointment of counsel, both of which were denied. Dkts.
##88, 89. He filed his present motion for vacation of his
sentence on April 3, 2017, more than three years after he was
initial question is whether petitioner's April 3, 2017
motion to vacate his sentence is timely. Petitioner did not
take an appeal from his 2014 sentence and his time for doing
so expired in 2015. Under 28 U.S.C. § 2255(f)(1) and
(3), he had one year from the date on his which conviction
became final in which to file, unless he could have shown
that his motion was filed within one year after the right
asserted was “initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review.” Petitioner contends that his filing
is timely under Mathis v. United States, 136 S.Ct.
2243 (2016), but he has not cited anything in Mathis
on in any other case to support his contention. The issue in
Mathis was whether Iowa's statutory definition
of “burglary” met the definition of a
“violent felony” under 18 U.S.C. § 924(e).
The case did not raise any issue relating to drug offenses or
to the statutory time for appeal of criminal conviction.
addition to Mathis, petitioner cites United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016),
presumably in support of his contention that this court erred
in treating his two prior drug convictions as controlled
substance offenses under the career offender guidelines.
There are two problems with this: Hinkle is a
decision from another circuit, with no binding effect on a
case in this circuit, and it was based on different facts
that do not exist in petitioner's case. However, because
the Hinkle case is frequently cited in challenges to
criminal convictions, I will discuss it briefly.
was charged in Texas with the federal crime of possession
with intent to distribute cocaine, in violation of 18 U.S.C.
§ 841(a) and (b)(1)(C), after he had sustained two prior
state convictions in Texas, one for burglary and a second for
distribution of controlled substances. Hinkle challenged the
sentencing court's decision to treat as a predicate
offense his conviction for knowingly manufacturing,
delivering or possessing with intent to deliver a controlled
substance, arguing that a separate section of the statute
defined “deliver” to include “offering to
sell a controlled substance, counterfeit substance, or drug
paraphernalia” and it was not possible to know which
part of the statute was the basis for his conviction. The
court of appeals agreed that Hinkle's drug conviction was
not a predicate offense for a finding that he was a career
offender. “In effect, the Texas law laid out two
alternative means of satisfying one element, that of a single
delivery.” Id. at 576. As a result,
“‘[t]he ‘delivery' element of
Hinkle's crime of conviction criminalizes a
‘greater swath of conduct than the elements of the
relevant [Guideline] offense.'” Id.
(quoting Mathis, 136 S.Ct. at 2251).
the decision in Hinkle governed petitioner's
case, which it does not, the decision would be of no
assistance to petitioner. Petitioner was convicted in
Minnesota in 2001 for the sale of a controlled substance, in
violation of Minn. Stat. § 152.03, subd. 1(1) and subd.
3(a), a charge that carried a maximum term of imprisonment of
20 years. He was convicted in Wisconsin in 2004 of one count
of possession with intent to manufacture, distribute or
deliver a controlled substance weighing more than 5 grams but
less than 15 grams, in violation of Wis.Stat. §
961.41(1m)(cm). Unlike Hinkle, he has made no showing that he
is relying on a new right that has been made retroactively
applicable to cases on collateral review. § 2255f(3).
petitioner has not shown that his challenge to his conviction
is timely. In fact, his 2014 federal conviction became final
in 2015. Nothing in either Mathis or Hinke
affords him an opportunity to bring a late challenge to that
conviction. Accordingly, I conclude that he has failed to
show that he is entitled to any relief from his sentence.
Rule 11 of the Rules Governing Section 2255 Proceedings, the
court must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). This means that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted). Petitioner has
not made a substantial showing of a denial of a
constitutional right so no certificate will issue.
is free to seek a certificate of appealability from the court
of appeals under Fed. R. App. P. 22, but that court will not
consider his request unless he first files a notice of appeal
in this court and pays the ...