United States District Court, E.D. Wisconsin
ORDER GRANTING PETITIONER'S MOTION TO
AMEND/CORRECT MEMORANDUM OF LAW IN SUPPORT OF §2255
(DKT. NO. 7), DENYING MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE (DKT. NO. 1), DISMISSING CASE AND DENYING
CERTIFICATE OF APPEALABILITY
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
November 3, 2016, the petitioner filed a motion to vacate or
set aside or correct his sentence under 28 U.S.C. §2255.
Dkt. No. 1. This court screened the motion, noting that the
petitioner had stated his arguments in Sixth Amendment,
ineffective-assistance-of-counsel terms. Dkt. No. 3 at 4. The
government filed a response, dkt. no. 4, and the petitioner
since has filed a motion to amend/correct his memorandum of
law, dkt. no. 7. Because the petitioner's claims are
untimely, the court will deny the motion.
March 15, 2011, the grand jury indicted the petitioner and
five other defendants on one count of conspiracy to
distribute 280 grams or more of crack cocaine between 2008
and 2010, in violation of 21 U.S.C. §§841(a)(1),
841(b)(1)(A) and 846. United States v. Maurice Davis, et
al., Case No. 11-cr-63 (E.D. Wis.), Dkt. No. 1. That
charge carried a mandatory minimum sentence of ten years in
prison, and a maximum of life. 21 U.S.C. §841(b)(1)(A).
months later, the parties filed a plea agreement.
Id., Dkt. No. 106. Related to the agreement, the
government filed an information, charging the petitioner with
one count of conspiracy; the information alleged that between
2008 and 2010, the petitioner had conspired with others to
distribute at least twenty-eight grams or more of crack.
Id., Dkt. No. 105. That charge carried a mandatory
minimum penalty of five years (half of the minimum the
petitioner originally had faced). 21 U.S.C.
§841(b)(1)(B). In the plea agreement the petitioner
voluntarily agreed to waive prosecution by indictment.
Id., Dkt. No. 106 at ¶4. The plea agreement
explained that the count to which the petitioner had agreed
to plead guilty carried a mandatory minimum of five years
imprisonment. Id. at ¶7. The petitioner and his
lawyer signed the plea agreement on October 7, 2011.
Id. at 13.
October 19, 2011, Judge Charles N. Clevert, Jr. presided over
the petitioner's change-of-plea hearing. Id.,
Dkt. No. 113. At that hearing, Judge Clevert asked the
petitioner what penalties he faced if he was convicted; the
petitioner responded, “I think there's a mandatory
minimum of five years to 40 year's [sic]
imprisonment.” Id., Dkt. No. 188 at 10. After
an extended plea colloquy that covered numerous other topics,
the defendant answered, “I plead guilty, Your Honor,
” when Judge Clevert asked for his plea. Id.
February 6, 2012, the petitioner's lawyer filed a motion
to withdraw; the petitioner had told his lawyer that the
petitioner did not believe the lawyer was acting in his best
interests. Id., Dkt. No. 170. The next day, the
petitioner himself filed a motion, asking the court to remove
his lawyer. Id., Dkt. No. 173. The next day, the
court received a letter from the petitioner, responding to
some of the statements his lawyer had made in the motion to
withdraw. Id., Dkt. No. 174.
February 10, 2012, the probation office filed the revised
presentence investigation report; among other things, it
indicated that the charge to which the defendant had pled
guilty carried a mandatory minimum penalty of five years.
Id., Dkt. No. 175 at ¶85.
February 13, 2012, Judge Clevert held a hearing on the two
motions to withdraw, granted them both, and asked the Federal
Defender to appoint new counsel for the petitioner.
Id., Dkt. No. 177.
September 21, 2012, the petitioner-acting on his own
behalf-filed a motion to withdraw his guilty plea.
Id., Dkt. No. 212. The same day, the
petitioner's newly appointed counsel filed a memorandum
in support of the petitioner's motion, arguing that Judge
Clevert should not have taken the guilty plea, because on at
least three occasions prior to the date of the plea hearing,
the petitioner had expressed dissatisfaction with his lawyer.
Id., Dkt. No. 213 at 4. Judge Clevert scheduled an
evidentiary hearing and granted the petitioner's motion
to proceed with stand-by counsel. Id., Dkt. No. 228.
The court received another motion to withdraw the guilty
plea-from the petitioner, not his lawyer-on September 21,
2012. Id., Dkt. No. 216. Judge Clevert scheduled an
evidentiary hearing. Id., Dkt. No. 217.
October 30, 2012 evidentiary hearing, the petitioner asked to
represent himself. Id., Dkt. No. 228 at 1. The court
granted that request, but asked counsel to stand by in case
the petitioner needed assistance. Id. After hearing
from the defendant on the merits of his motions to withdraw
his guilty plea (as well as from stand-by counsel regarding
the petitioner's competence), Judge Clevert denied the
petitioner's motions to withdraw his guilty plea.
Id. at 2. The judge also had planned to proceed to
sentencing that day, but adjourned the hearing when it was
clear that the parties could not agree on the drug amounts
for relevant conduct. Id., Dkt. No. 230. The court
adjourned the sentencing hearing to December 5, 2012, and set
deadlines for the parties to file documents related to the
drug amounts. Id.
the next couple of months, the petitioner filed a motion for
access to information, dkt. no. 239; a motion for disclosure
of informants, dkt. no. 240; and a motion to dismiss the
case, dkt. no. 243. On December 5, 2012, Judge Clevert denied
the motion to dismiss the case and the motion to disclose
informants, as well as an earlier motion the petitioner had
filed regarding the prosecutor and the grand jury, dkt. no.
226. Id., Dkt. No. 245. He granted the
petitioner's request for an extension of time, but
otherwise denied the motion for access to information.
Id. The judge set the next sentencing date for
January 25, 2013 at 9:30 a.m. Id.
petitioner continued to file pleadings-a response to the
government's exhibit, dkt. no. 244; a sentencing
memorandum, dkt. no. 246. Judge Clevert adjourned the
sentencing hearing to February 25, 2013 at 9:30 a.m. The
petitioner then filed a motion to impeach tainted evidence,
dkt. no. 248; a motion to set aside or vacate the plea
agreement, dkt. no. 250; a memorandum in support of a motion
for discovery of grant jury minutes, dkt. no. 251. At this
point, Judge Clevert rescheduled the sentencing to April 3,
2013. The petitioner then filed a memorandum in support of
his motion to impeach tainted evidence, dkt. no. 248; a
memorandum of law in support of a Brady claim, dkt.
no. 253; a “notice of concern, ” dkt. no. 254; a
motion to compel response, dkt. no. 255. Judge Clevert
rescheduled sentencing to April 17, 2013.
April 17, 2013 sentencing hearing, Judge Clevert denied the
petitioner's various motions. Id., Dkt. No. 260.
Regarding sentencing, the government agreed (after extensive
argument) to recommend a weight of 196 to 280 grams, a
guideline range of 130 to 162 months and a below-guidelines
sentence of 120 months (which was consistent with the terms
of the plea agreement, dkt. no. 106 at 5-7). Id. The
court calculated the guidelines by starting with a base
offense level of 30, id. at 4, then applying a
3-level reduction for acceptance of responsibility,
id. The revised offense level of 27 in criminal
history category of VI resulted in the sentencing range of
130 to 162 months. Id. Judge Clevert correctly
stated the mandatory minimum during the sentencing
proceeding, commenting that “one thing is crystal
clear, there's a mandatory minimum sentence of five years
that must be imposed here.” Id., Dkt. No. 274
at 63. Judge Clevert imposed a below-guidelines sentence of
120 months' imprisonment and four years of supervised
release. Id. at 66.
Statement of Reasons he signed on April 17, 2013, Judge
Clevert adopted the presentence report (which had referenced
the five-year mandatory minimum) without change.
Id., Dkt. No. 262 at 1. He marked Box B under
“Court Finding on Mandatory Minimum Sentence, ”
the box that stated, “Mandatory Minimum Sentence
Imposed.” Id. He marked the box under Section
IV that said that he was imposing a sentence outside the
guidelines. Id. at 2. He marked the box under
Section VI that said he was imposing a sentence below the
guideline range. Id. at 3. In the section where he
explained why he believed a below-guidelines sentence was
warranted, Judge Clevert wrote, “The court adopts the
government's recommendation for the 10 year mandatory
minimum sentence. A below guideline sentence is warranted to
account for the ongoing disparity in the guidelines between
powder cocaine versus crack cocaine. This sentence also
avoids sentencing disparities among the defendants.”
petitioner filed a notice of appeal, arguing that the
government had violated the plea agreement. Id.,
Dkt. No. 263. He did not argue that Judge Clevert had imposed
an illegal sentence. He did not argue that his sentencing
lawyer provided ineffective assistance of counsel. Because
the petitioner received the full benefit of the agreement,
the Seventh Circuit affirmed the judgment on August 1, 2014.
United States v. Davis, 761 F.3d 713, 716 (7th Cir.
Motion to Amend/Correct Memorandum (Dkt. No. 7)
court will begin with the petitioner's “request to
amend” his memorandum of law. Dkt. No. 7. He filed this
request after the court gave him an extension of time to file
his brief; the “request to amend” is really the
petitioner's brief in support of his motion to vacate,
set aside or correct sentence. Id. In the eight-page
request to amend, the petitioner addresses the
respondent's arguments that his petition is time-barred,
and his own argument that Judge Clevert lacked subject-matter
jurisdiction to impose a ten-year mandatory minimum sentence.
Id. The court will grant the request to amend. It
has considered all of the arguments in the petition, as well
as the arguments in the request for leave to amend, in
reaching its decision to deny the §2255 motion.
Motion to Vacate, Set Aside, or Correct Sentence (Dkt. No.
28 U.S.C. §2255 allows a federal prisoner to ask the
court that imposed his sentence to vacate, set aside or
correct that sentence “upon the ground that the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack[.]” 28 U.S.C.
2255(f) contains a one-year limitations period, which runs
from the latest of:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or law of the United States is removed, if the
movant was prevented from making a motion by such
(3) 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. §2255(f)(1)-(4).
allows a petitioner to ask the court to “toll, ”
or pause, the one-year clock. The one-year limitations period
is subject to two different “tolling”
procedures-statutory tolling and equitable tolling.
Subsection (d)(2) of the statute provides for
“statutory tolling, ” stating that “the
time during which a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.” 28 U.S.C. §2244(d)(2). As for
equitable tolling, a court may invoke that doctrine only if
the petitioner shows “‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Holland v. Fla., 560
U.S. 631, 649 (2010). “Equitable tolling is an
extraordinary remedy and so ‘is rarely
granted.'” Obriecht v. Foster, 727 F.3d
744, 748 (7th Cir. 2013) (quoting Simms v. Acevedo,
595 F.3d 774, 781 (7th Cir. 2010)). “The petitioner
seeking equitable tolling bears the burden of establishing
that it is warranted.” Id. (citing
Williams v. Buss, 538 F.3d 683, 685 (7th Cir.
a petitioner timely files his petition within the one-year
limitations period, he is not entitled to relief under