United States District Court, E.D. Wisconsin
JESSIE L. JONES, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 14-CR-226-2-JPS
Stadtmueller, U.S. District Judge.
petitioner, Jessie L. Jones (“Jones”), pleaded
guilty to conspiracy to commit Hobbs Act robbery. Case No.
14-CR-226-2-JPS (“Criminal Case”), (Docket #22).
On June 18, 2015, the Court sentenced Jones to 151
months' imprisonment. Criminal Case, (Docket #50). His
sentence was later adjusted. Criminal Case, (Docket #75).
Jones has never filed an appeal in his criminal case. The
instant motion was filed on June 26, 2017. (Docket #1).
asserts four grounds for relief: 1) improper application of
controlled substance offense as a career offender predicate
in light of Mathis v. United States, 136 S.Ct. 2243
(2016); 2) violation of due process and equal protection by
applying co-defendant's actions to enhance Jones'
sentence; 3) the sentencing enhancements applied to Jones
were not established by clear and convincing evidence as
required by United States v. Kikumura, 918 F.2d 1084
(3d Cir. 1990); and 4) ineffective assistance of counsel with
regard to entering a plea agreement which allowed Jones'
sentence to be enhanced for the uncharged conduct of a
co-actor. Id. at 4-8.
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
4(b), Rules Governing § 2255 Proceedings.
Court begins by addressing the timeliness of Jones'
motion. 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 runs
from the date on which the judgment of conviction becomes
final. “[T]he Supreme Court has held that in the
context of postconviction relief, 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.'” Robinson v. United States, 416
F.3d 645, 647 (7th Cir. 2005) (internal citations omitted).
The current operative judgment in Jones' case was issued
on December 15, 2015. Jones' motion is thus untimely on
its face, having been filed more than six months after the
limitations period expired.
recognizes this and attempts to save each ground. As to
Ground One, Jones asserts that it is timely because
Mathis was decided only last year. The limitations
period usually runs from the date of final judgment, but can
also run from “the date on which 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[.]” 28 U.S.C. § 2255(f)(3).
Mathis, however, did not announce a new right such
that Section 2255(f)(3) is triggered. See Brooks v.
United States, No. 17-2168, 2017 WL 3315266, at *3-4
(C.D. Ill. Aug. 3, 2017) (arriving at holding by analyzing
Mathis under Teague v. Lane, 489 U.S. 288
(1989), and collecting cases in agreement). Thus, Ground One
Ground Two, Jones contends that his tardiness should be
excused because “[c]ounsel did not give adequate advice
or direction regarding the appeal process and failed to file
a notice of appeal.” (Docket #1 at 6). Similarly, for
Ground Four, Jones qualifies his lateness by claiming that
“I have learned that ineffective assistance claims are
held for 2255 filings[, ] although at the time I did not even
know this.” Id. at 9. These are, in essence,
requests that the limitations period be equitably tolled.
See United States v. Marcello, 212 F.3d 1005, 1010
(7th Cir. 2000). Equitable tolling is “‘reserved
for extraordinary circumstances far beyond the litigant's
control that prevented timely filing.'” Socha
v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014) (quoting
Nolan v. United States, 358 F.3d 480, 484 (7th Cir.
2004)). To be entitled to equitable tolling, a petitioner
bears the burden of establishing: “(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Socha, 763 F.3d at 683-84
(citing Holland v. Florida, 560 U.S. 631, 649
(2010); Tucker v. Kingston, 538 F.3d 732, 734 (7th
Seventh Circuit has recently cautioned district courts that
equitable tolling is not a “chimera-something that
exists only in the imagination.” Socha, 763
F.3d at 684. Rather, despite not having approved of equitable
tolling of a habeas corpus petition for many years, see
Tucker, 538 F.3d at 734, the Seventh Circuit now notes
that courts “are not free . . . to regard equitable
tolling as something that exists in name only; this would
render the Supreme Court's explicit approval of equitable
tolling in Holland a nullity.” Socha,
763 F.3d at 684 (citing McQuiggin v. Perkins, 133
S.Ct. 1924, 1931 (2013)). Equitable tolling could thus save
Grounds Two and Four. Though not explicitly raised by him,
the Court will also permit Jones to defend Ground One on the
basis of equitable tolling. In light of these potential
exceptions to Jones' otherwise untimely motion, the Court
is reluctant to dismiss it on timeliness grounds without the
benefit of further submissions from Jones and the government.
See, e.g., Gildon v. Bowen, 384 F.3d 883 (7th Cir.
2004) (“it is difficult to conceive of a situation
where a claim of equitable tolling would be clear on the face
of the petition, ” thus, it is generally accepted that
the Court should not dismiss a petition sua sponte
on timeliness grounds, without input from the parties; also
noting that the limitations period of 28 U.S.C. § 2244
“is an affirmative defense, [which] the state has the
burden of” proving) (citing Acosta v. Artuz,
221 F.3d 117, 121-22 (2d Cir. 2000); United States v.
Burke, 504 U.S. 229, 246 (1992) (Scalia, J.
concurring)); see also Ray v. Clements, 700 F.3d
993, 1006 (7th Cir. 2012).
the Court will allow Jones' motion to proceed beyond this
initial screening stage. Nonetheless, the petition remains on
life support because it is likely time-barred. But, as just
noted, that is an argument the government will have to make,
after which Jones may respond. It is also possible that Jones
simply does not state a claim for relief. These are issues
that the government may wish to address in responding to
Jones § 2255 motion.
Court has not yet mentioned Ground Three because it is
inarguably meritless, so no procedural analysis is necessary.
The Seventh Circuit has already rejected Jones'
McGowan also asserts that since the district court's
finding regarding the crack sales fueled the hefty sentence
imposed on him, the court should have made its finding by
clear and convincing evidence, not a mere preponderance,
which is the normal standard of proof at sentencing. Before
United States v. Booker, 543 U.S. 220 . . . (2005),
we expressed some sympathy for the argument that a higher
standard of proof should be required when a finding results
in a considerable increase in a defendant's sentence.
See, e.g., United States v.
Corbin, 998 F.2d 1377, 1387 (7th Cir. 1993). But
Booker, which made the guidelines advisory,
extinguished any need for differing standards of proof.
United States v. Fisher, 502 F.3d 293, 306 (3d Cir.