United States District Court, E.D. Wisconsin
PRESTON D. ALLEN, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 15-CR-229-JPS
Stadtmueller U.S. District Judge.
Preston D. Allen (“Allen”) pled guilty to a
single count of distributing crack cocaine. See United
States v. Preston Allen, Case No. 15- CR-229 (E.D. Wis.)
(Judgment, Docket #23). On June 3, 2016, the Court sentenced
Allen to a term of 60 months' imprisonment. Id.
Allen did not appeal. On May 30, 2017, Allen filed a motion
to vacate his sentence, pursuant to 28 U.S.C. § 2255.
(Docket #1). That motion is now before the Court for
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
4(b), Rules Governing § 2255 Proceedings.
motion advances a single ground for relief. At sentencing,
his offense level was enhanced by two levels because he
possessed a firearm while committing the drug offense for
which he was charged. Case No. 15-CR-229, (Revised
Presentence Investigation Report, Docket #19; Sentencing
Hearing Minutes, Docket #22). Allen believes that this was
based on a pending state charge for firearm possession.
(Docket #1 at 6-7). That charge was later dismissed.
Id. Allen contends that the state prosecutor's
dismissal of the charge “makes me factually innocent of
the possession of a firearm, ” and that the enhancement
is therefore improper. Id. at 7.
Court need not address the obvious procedural failing in
Allen's motion-he never appealed his sentence-because it
is based on an erroneous factual assumption. The Court's
imposition of the firearm enhancement was not based on the
pending state charge. As the presentence report in his
criminal case explained, multiple confidential informants saw
Allen carrying a gun while distributing crack cocaine. Case
No. 15-CR-229, (Docket #19 at ¶¶ 10, 13, 16, 19).
These facts, and not any state prosecution, are what laid the
foundation for the firearm enhancement. Id. ¶
27. Further, Plaintiff is incorrect that the mere dismissal
of the state charge “makes [him] factually
innocent” of possessing a firearm. A prosecution may be
dismissed for a host of reasons having nothing to do with the
accused's guilt or lack thereof. Even acquittal at trial
does not prove innocence; it merely reflects an inability to
establish guilt beyond a reasonable doubt. Pulungan v.
United States, 722 F.3d 983, 985 (7th Cir.
2013). It is plain that Allen is not entitled to
relief, and so his motion must be dismissed.
Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Allen must make a
“substantial showing of the denial of a constitutional
right” by establishing 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.
Cockr ell, 537 U.S. 322, 336 (2003) (internal citations
omitted). As the Court discussed above, no reasonable jurists
could debate whether Allen's motion stated a cognizable
claim under Section 2255 because its only ground for relief
was based on a demonstrably false assumption. As a
consequence, the Court is compelled to deny a certificate of
appealability as to Allen's motion.
the Court closes with some information about the actions that
Allen may take if he wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30
days of the entry of judgment. See Fed. R. App. P.
3, 4. This Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See
id. A party is expected to closely review all applicable
rules and determine what, if any, further action is
appropriate in a case.
IT IS ORDERED that Petitioner's motion to proceed in
forma pauperis (Docket #2) be and the same is hereby
DENIED as moot;
FURTHER ORDERED that Petitioner's motion to vacate, set
aside, or correct his sentence pursuant to Section 2255
(Docket #1) be and the same is hereby DENIED;
FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice; and
FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.