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McNair v. United States

United States District Court, N.D. Indiana, Fort Wayne Division

June 28, 2018

TYRUS MCNAIR, Petitioner,



         This matter is before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed by petitioner Tyrus McNair on April 12, 2017 (Docket Entry 262). The United States filed a response in opposition to the motion (DE 272) and McNair filed a reply (DE 273). For the reasons discussed below, the Court concludes that it lacks jurisdiction to entertain the motion until McNair obtains permission from the Seventh Circuit Court of Appeals to file a second or successive habeas petition. Accordingly, the motion to vacate (DE 262) is DISMISSED FOR LACK OF JURISDICTION. The Public Defender is instructed to file, within seven days of the date of this Order, either a renewed motion to withdraw or a notice to the Court of their intention to continue representing McNair.[1]


         I. Procedural history.

         Two days after McNair filed his present motion, attorney Thomas O'Malley of the Northern Indiana Public Defenders Office, who has represented McNair at various times over the years, filed his notice of appearance in this case (DE 263). There was no activity in the case for a number of months so on October 26, 2017, the Court entered an order directing the Public Defender “to file a notice with the Court, within 30 days of the date of this Order, notifying the Court if their office intends to represent the defendant in litigating the motion for reduction of sentence or, if not, their reason for declining to do so (for example, if the Public Defender concludes that the motion lacks merit).” Court Order (DE 264). The Public Defender timely filed that Notice to the Court on November 27, 2017, indicating that their office had concluded that McNair's motion was meritless. Notice to the Court (DE 265). One day later the Public Defender filed a Motion to Withdraw as Attorney (DE 266). When he learned that the Public Defender was seeking to withdraw, McNair filed a pro se memorandum in support of his motion (DE 267). That memorandum contained much more detail and many more factual assertions concerning the issue presented than did McNair's original motion. The Court concluded after reviewing McNair's memorandum “that McNair has raised a potentially viable issue” regarding his sentence. Accordingly, the Court denied without prejudice the Public Defender's motion to withdraw, took McNair's motion under advisement, and instructed the Public Defender and the government to file briefs addressing McNair's argument. Court Order, Feb. 1, 2018 (DE 271). The government filed its response in opposition to McNair's motion (DE 272) and the Public Defender, armed with factual assertions that McNair had not provided in his original pleading, filed a reply brief in support of McNair's motion (DE 273). Those briefs, together with McNair's own pleadings, elucidate the issues and the parties' arguments, and so this matter is ripe for resolution.

         II. McNair's motion is a “second or successive” petition under § 2255 over which this Court lacks jurisdiction.

         McNair's motion raises two issues-a substantive one and a procedural one. The substantive issue is whether McNair is entitled to be resentenced based on the fact that he was able to obtain the vacatur of an Indiana state court conviction that was used to increase his federal sentence. (More specifically, the existence of the prior state court conviction resulted in McNair being sentenced as a Criminal History Category II rather than Category I, thereby increasing the applicable guideline range for his federal sentence in this case.) McNair relies on the Supreme Court decision in Johnson v. United States, 544 U.S. 295 (2005), to support his argument. In Johnson, the defendant was convicted of a federal drug charge in 1994 and was sentenced as a career offender based on prior state convictions. Johnson, 544 U.S. at 298. Johnson later obtained vacatur of one of his state convictions. He then filed a motion under § 2255 challenging his federal sentence since it was based in part on the finding that he was a career offender, which in turn had been based on his now-vacated state-law conviction. The district and appellate courts held that the petition was barred by § 2255's one-year statute of limitations but the Supreme Court disagreed, holding that the limitations period began to run when Johnson received notice of the order vacating his prior state court conviction. Id. at 302. “In other words, as the Seventh Circuit has put it, Johnson held that vacatur of an underlying conviction is a new ‘fact' that opens a one-year window to seek collateral relief.” United States v. Stevenson, 227 F.Supp.3d 953, 956-57 (N.D. Ill. 2016) (citing Unthank v. Jett, 549 F.3d 534, 535 (7th Cir. 2008)). The Court in Johnson also imposed a concomitant requirement on petitioners: not only must a petitioner seek and obtain vacatur of his state court conviction, he must also “exercise ‘due diligence' in seeking that vacatur.” Johnson, 544 U.S. at 302. If a prisoner meets those two requirements he can then present his claim for resentencing in a § 2255 motion, even if the motion is filed long after the expiration of the one-year statute of limitations imposed in § 2255(f)(1). This makes eminent sense, of course, since a federal prisoner would not even have a ripe Johnson claim until he obtains vacatur of his underlying conviction from the state court, which he might not be able to get soon enough to meet the general one-year limitation period for filing a § 2255 motion. As long as the prisoner used “due diligence” in seeking and obtaining that vacatur, his motion would be deemed timely pursuant to the equitable tolling provision in § 2255(f)(4).[2] McNair insists he used due diligence in obtaining the vacatur of his state court conviction, even though he did not obtain that vacatur until January 12, 2017-fourteen years after he was sentenced by this Court and 12 years after the expiration of the one-year limitation provision of § 2255(f)(1).[3]

         The procedural issue raised by McNair's motion, which is dispositive for present purposes, is whether this Court has jurisdiction to entertain the motion in the first place. The government insists that because McNair already filed a timely § 2255 motion in 2005, “[t]his filing by McNair . . . is a second or successive motion over which this Court has no jurisdiction.” Government's Response in Opposition (DE 272), p. 1. A motion under § 2255 is ordinarily the “exclusive means for a federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). “And, a prisoner is generally limited to bringing only one motion under § 2255. A prisoner may not file a ‘second or successive' motion unless a panel of the appropriate court of appeals certifies that such motion contains either 1) newly discovered evidence ‘sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense,' or 2) ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.'” Neely v. Werlich, 2018 WL 2364841, at *1 (S.D. Ill. May 24, 2018) (quoting 28 U.S.C. § 2255(h)). Therefore, McNair must obtain leave from the Seventh Circuit Court of Appeals to file a second or successive petition under § 2255. See Nuñez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (“A district court must dismiss a second or successive petition . . . unless the court of appeals has given approval for its filing.”); United States v. Carraway, 478 F.3d 845, 849 (7th Cir. 2007) (“Unless and until the movant seeks and obtains permission from the court of appeals to file [a second or successive] motion, the district court is without jurisdiction to entertain his request.”).

         There are exceptions to this rule barring second or successive petitions and McNair contends his case fits under one of them. In limited circumstances, a prisoner can bring a second in time habeas petition that is not considered “second or successive” under § 2244 and therefore the petitioner would not need to obtain leave from a circuit court to file it. Many courts in other jurisdictions agree and have ruled that federal prisoners who file a second § 2255 petition that raises a claim that was not ripe at the time the prisoner filed his first petition are not barred from presenting the second one to the sentencing court. In the Seventh Circuit, however, this exception is not available, or so this Court concludes based on its reading of recent Seventh Circuit decisions addressing the issue. At the very least, the applicable cases-including Unthank v. Jett, 549 F.3d 534 (7th Cir. 2008), Purvis v. United States, 662 F.3d 939 (7th Cir. 2011), and United States v. Obeid, 707 F.3d 898 (7th Cir. 2013)-do not provide a definitive answer to the question presented. Accordingly, the Court concludes that McNair's present petition under § 2255 is a “second or successive” petition and that this Court lacks jurisdiction to review it unless McNair first obtains leave from the Seventh Circuit to file it.

         McNair insists that his motion is not a “second or successive” petition. He argues that Johnson opens a new window of opportunity for him to bring his present motion and that the Purvis case, which McNair insists is factually similar to his, confirms this. Memorandum in Support, p. 8. In Purvis the defendant was sentenced in federal court for conspiracy to distribute narcotics. Purvis, 662 F.3d 939. His federal sentence was enhanced on the basis of prior state court convictions and Purvis was sentenced as a career offender on June 5, 2006. Id., p. 940. The Seventh Circuit dismissed Purvis's appeal of his sentence on December 7, 2006, and the U.S. Supreme Court denied his writ of certiorari on October 1, 2007. Id. Meanwhile, on August 20, 2007, “Purvis filed a motion in state court to vacate one of the two prior convictions underlying his career-offender sentence.” Id., p. 941. Purvis “next filed a timely motion pro se under . . . § 2255 challenging his federal sentence on the basis of a variety of ineffective assistance claims. In that motion, Purvis also referenced his then ongoing suit to vacate a state conviction[.]” Id. “On June 30, 2009, the Illinois circuit court entered an order vacating Purvis's state conviction[.]” Id. The district court denied Purvis's motion as untimely, given that it was filed well beyond the one-year statute of limitations in § 2255(f), but the Seventh Circuit reversed, holding that “[i]n Johnson v. United States, the Supreme Court held that the state court's vacatur of a predicate conviction is a new ‘fact' that triggers a fresh one-year statute of limitations under § 2255(f)(4), so long as the petitioner exercised due diligence in seeking that order. . . . Thus, Johnson established that the basis for a claim challenging a sentence predicated on faulty state convictions arises when the order vacating those predicate convictions issues. . . . The [state court] vacatur order gives a defendant both the basis to challenge the enhanced sentence and a new one-year period in which to pursue that challenge.” Purvis, 662 F.3d at 942 (internal citations to Johnson omitted). The government doesn't challenge the timeliness of McNair's petition-he filed it within one year of the vacatur of his state conviction-but insists that McNair's motion is a “second or successive” petition that he cannot file until he obtains permission to do so from the Seventh Circuit.

         Again, McNair's argument that his current motion is not a second or successive petition and that he should be permitted to present his substantive argument for resentencing to this Court finds much support in case law, but not in this circuit. McNair is correct that Johnson provided him with a new one-year statute of limitations in which to raise this issue, but neither Johnson nor Purvis excuse him from the prohibition against filing a second or successive petition under § 2255. The Purvis case is distinguishable because the issue in that case did not involve a “second or successive” petition, but rather a prisoner's right to seek a stay of his first motion under § 2255 until his Johnson claim became ripe. In this case, McNair's claim was already ripe when he filed his motion-the question is whether he can bring that claim in a “second or successive” habeas proceeding. In Purvis, the Seventh Circuit explained its holding as follows:

The Eleventh Circuit recently addressed this issue in Stewart v. United States, 646 F.3d 856 (11th Cir. 2011). It concluded that the petitioner's Johnson claim was not “second or successive” within the meaning of the gatekeeping provisions of § 2244(b)(2). See Id. at 863-64. In Stewart, the petitioner was sentenced as a career offender. He then filed a § 2255 motion requesting additional time to file a § 2255 motion and expressed his intention to raise an ineffective assistance claim. Id. The state court then vacated his predicate state conviction, and he promptly filed a second § 2255 motion, asserting a Johnson claim. Id. at 858. The Eleventh Circuit, applying the Supreme Court's reasoning in Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), declined to literally interpret AEDPA's “second or successive” language and concluded that the petitioner properly raised his Johnson claim in his second § 2255 motion when it first became ripe. Id. at 864.
In Panetti, the petitioner filed a federal habeas petition that challenged his conviction but did not assert a Ford [competency] claim. 551 U.S. at 937, 127 S.Ct. 2842. The district court denied his petition on the merits. Id. The petitioner then filed a second habeas petition alleging, for the first time, that he was incompetent to be executed. Id. at 938, 127 S.Ct. 2842. The Supreme Court granted certiorari to decide whether that petition constituted an improper “second or successive” habeas application under § 2244(b). Id.
The Court held that the petition was not “second or successive” within the meaning of § 2244(b) because “Congress did not intend the provisions of AEDPA addressing ‘second or successive' petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.” Id. at 945, 127 S.Ct. 2842. The Court further reasoned that “[a]n empty formality requiring prisoners to file unripe Ford claims neither respects the limited legal resources available to the States nor encourages the exhaustion of state remedies.” Id. at 946, 127 S.Ct. 2842. Accordingly, the Court declined to construe AEDPA, which Congress “implemented to further the principles of comity, finality, and federalism, in a manner that would require unripe (and, often, factually unsupported) claims to be raised as a mere formality, to the benefit of no party.” Id. at 947, 127 S.Ct. 2842.
Besides Panetti, the Supreme Court's earlier decision in Rhines v. Weber also addressed the present difficulty faced by Purvis. 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). In Rhines, the Court examined the combined effect of AEDPA's one-year statute of limitations period and Lundy's dismissal requirement for habeas petitions mixed with unexhausted and exhausted claims. See Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The Court observed:
. . . [P]etitioners who come to federal court with “mixed” petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review. Rhines, 544 U.S. at 275, 125 S.Ct. 1528.
Specifically, the Court considered “whether a federal district court has discretion to stay [a] mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition.” 544 U.S. at 271-72, 125 S.Ct. 1528. It concluded that the district courts indeed possess such discretion. In appropriate but limited circumstances, therefore, the Court concluded that the “stay and abeyance” procedure used by the district court in the case before it was proper.
. . .
We see no reason why Purvis's unripe career-offender claim should be treated as fundamentally different than an unexhausted habeas claim when considering whether a stay is proper. We are reluctant to find that a ripe Johnson claim brought for the first time in a second § 2255 motion is not “second or successive.” . . .

Purvis, 662 F.3d at 942-45 (italics added). The government seizes on that last sentence, arguing that it is the end of the debate and that McNair cannot bring this habeas action without obtaining permission from the appellate court. The Court is not convinced the answer is that black and white, especially in light of language in Obeid that seems to reject the dicta in Purvis (as discussed below). Before addressing this ...

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