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Friday, 20 September, 2013 09:31:58 AM
Clerk, U.S. District Court, ILCD










Case No. 13-CV-2070

Petitioner, Juan M. White, filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant

to 28 U.S.C. § 2255 (#1) on March 26, 2013. The government filed a Motion to Dismiss (#10) on

June 5, 2013. Petitioner filed his Response (#12) to the Motion to Dismiss on June 17, 2013. For

the following reasons, the government’s Motion to Dismiss (#10) is GRANTED and Petitioner’s

Petition (#1) is dismissed for lack of jurisdiction.


Petitioner was convicted following a jury trial of distribution of 50 or more grams of crack

cocaine in violation of 21 U.S.C. § 841(a)(1), in Case No. 03-CR-20092. On November 29, 2006,

Petitioner was sentenced to 360 months in the Bureau of Prisons. On March 5, 2008, the Seventh

Circuit Court of Appeals affirmed Petitioner’s conviction and sentence. United States v. White, 519

F.3d 342 (7 Cir. 2008). Petitioner filed a first petition to vacate, set aside, or correct sentence


pursuant to 28 U.S.C. § 2255 on August 3, 2009 (Case No. 09-CV-2184). On December 4, 2009,

this court issued an Opinion denying Petitioner’s first § 2255 petition. This court denied a certificate


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of appealability on February 3, 2010. On August 23, 2010, the Seventh Circuit denied Petitioner’s

request for a certificate of appealability.

On April 16, 2012, Petitioner filed a pro se motion for retroactive application of the

sentencing guidelines to crack cocaine offense in his criminal case. This court appointed the federal

defender and on May 11, 2012, the federal defender, in agreement with the government, filed an

“Amended Motion to Reduce Sentence.” The amended motion was made pursuant to 18 U.S.C. §

3582(c)(2). The motion noted that under retroactive amendment 750 to the United States Sentencing

Guidelines Petitioner’s base offense level should be recalculated from 38 to 36, resulting in a lower

total offense level of 39 (instead of the original 41). Combined with a criminal history category of

II, Petitioner’s guideline range was recalculated as 292 to 365 months. The motion requested “that

this Honorable Court GRANT the Defendant’s motion to reduce sentence and enter an Amended

Judgment and Conviction sentencing the Defendant to 292 months’ imprisonment ...” On June 21,

2012, this court, without a hearing, entered a short form order that stated the following:

“Upon motion of [the defendant] under 18 U.S.C. § 3582(c)(2) for a reduction

in the term of imprisonment imposed based on a guideline sentencing range that has

subsequently been lowered and made retroactive by the United States Sentencing

Commission pursuant to 28 U.S.C. § 994(u), and having considered such motion, and

taking into account the policy statement set forth at USSG § 1B1.10 and the

sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent they are applicable,

IT IS ORDERED that the motion is:


the defendant’s previously

imposed sentence of

imprisonment (as reflected in the last judgment issued) of 360 months is reduced to


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292 months[].


Except as otherwise provided, all provisions of the judgment dated 12/1/06

shall remain in effect.


Petitioner filed the instant petition on March 26, 2013. In the petition, he argues that this

court improperly found that he had, in the drug offense for which he was convicted, a

“manager/supervisor” role under the Sentencing Guidelines, which earned him an enhanced

sentence. He further argues that his sentence should be reduced due to acceptance of responsibility

and his completion of several institutional programs in the Bureau of Prisons. Petitioner also notes

that he has not received any disciplinary infractions since being sentenced. The government’s

motion to dismiss argues that this is a successive § 2255 petition filed without permission from the

Seventh Circuit and thus should be denied. The government contends that Petitioner’s claims do not

arise from his June 2012 sentence modification. Rather, the government argues that the claims relate

to the 2006 sentencing and were known to Petitioner at that time and could have been raised in his

direct appeal or initial § 2255 petition. Thus, the government argues this court is without jurisdiction

to entertain the successive § 2255 petition without permission from the Seventh Circuit and,

additionally, that the petition is untimely. Petitioner, in his response, argues that the government is

misconstruing his petition, and that the claims relate to the June 2012 sentence because the modified

sentence still contains the “manager/supervisor” enhancement, and thus the argument against the

enhancement is necessarily embedded in that sentence.



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Seventh Circuit Case Law on Second or Successive Habeas Petitions

“Section 2255 gives a federal prisoner one opportunity to challenge a

conviction and sentence following a direct appeal. See 28 U.S.C. § 2255(a), (h). If

a prisoner seeks to challenge his conviction or sentence a second time, he must

persuade a court of appeals to certify the motion and authorize the district court to

hear it. See 28 U.S.C. §§ 2244(a)-(b), 2255(h). The court of appeals may authorize

a second or successive motion only if it presents either (1) newly discovered evidence

that makes a clear and convincing showing of innocence or (2) a new rule of

constitutional law made retroactive by the Supreme Court. 28 U.S.C. § 2255(h).

Without authorization from the court of appeals, the district court has no jurisdiction

to hear the petition. [citation omitted]” Suggs v. United States, 705 F.3d 279, 281-82


(7 Cir. 2013).

The Seventh Circuit has noted that not all subsequent motions “are ‘second or successive’

within the meaning of the statutes, for the phrase is a term of art in the technical world of habeas

procedure.” Suggs, 705 F.3d at 282. Pertinent to the arguments advanced by the parties in the

instant case, the Seventh Circuit has “held that such motions after resentencing are not second or

successive when they allege errors made during the resentencing, but they are second or successive

when they challenge the underlying conviction.” Suggs, 705 F.3d at 282, citing Dahler v. United

States, 259 F.3d 763 (7 Cir. 2001). This holding, however, has been called into question by the


Supreme Court’s decision in Magwood v. Patterson, 130 S.Ct. 2788 (2010). In Magwood, the Court

held that, where a state prisoner pursuant to 28 U.S.C. § 2254 successfully challenged his sentence,

he could file a second § 2254 petition challenging an alleged error at the resentencing, even if the


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alleged error occurred at the original sentencing as well. Magwood, 130 S.Ct. at 2801. The Supreme

Court rejected the state’s argument that the prisoner’s claim was not “new” because the trial court

made the same mistake at the original sentencing, holding “[a]n error made a second time is still a

new error. That is especially clear here, where the state court conducted a full resentencing and

reviewed the aggravating evidence afresh.” Magwood, 130 S.Ct. at 2801. In analyzing Magwood,

the Seventh Circuit concluded the Supreme Court “left open the question of whether a motion

following a resentencing is ‘second or successive’ where it challenges the underlying conviction, not

the resentencing.” Suggs, 705 F.3d at 284. Thus, because the Court left that question open, the

Seventh Circuit felt bound to follow the precedent established in Dahler, and continues to hold that,

where a petitioner does not claim that any errors, new or repeated, occurred in the resentencing, and

only claims errors made in the underlying conviction, such a petition is a second or successive

petition. Suggs, 705 F.3d at 284-85.

Whether Petitioner’s Petition is Second or Successive

The arguments of the parties center on whether Petitioner’s claim is “new” and rising out

of the June 2012 sentence, or whether Petitioner’s claim could have been raised when sentence was

imposed in 2006. However, before the court can analyze these arguments under either Suggs or

Magwood, the court must first determine whether there has even been a “resentencing” or

“intervening judgment” so that those cases would apply.

In both Suggs and Magwood, the prisoner petitioners successfully challenged their

judgments under the habeas statutes. Suggs, 705 F.3d at 281; Magwood, 130 S.Ct. at 2793. In



Suggs involved a § 2255 petition of a prisoner in federal custody pursuant to a federal
judgment, whereas Magwood involved a § 2254 petition of a prisoner in custody pursuant to a
state court judgment. However, the bar on successive challenges under § 2254 is parallel to the


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Suggs, the petitioner successfully alleged in his initial § 2255 petition that he received ineffective

assistance of counsel regarding his sentencing guideline calculations. Suggs, 705 F.3d at 281. In

Magwood, the petitioner successfully alleged that his sentence was unconstitutional because the trial

court failed to find statutory mitigating circumstances relating to his mental state. Magwood, 130

S.Ct. at 2793. He received a new, full sentencing hearing. Magwood, 130 S.Ct. at 2793. The Court

was careful to note that there had been an “intervening judgment” and that the subsequent § 2254

petition, the one challenging error at the resentencing, was the petitioner’s “first application

challenging that intervening judgment.” Magwood, 130 S.Ct. at 2801 (emphasis in original). In

analyzing Magwood, both the majority and dissent in Suggs made clear that the Magwood holding

applied only to cases in which there had been a “new” or “intervening” judgment following a

successful initial habeas petition. Suggs, 705 F.3d at 284 (“Treating the petitioner’s resentencing

as a new, intervening, judgment, the Court held that his new petition challenged the intervening

judgment and therefore was not ‘second or successive.”); Suggs, 705 F.3d at 285 (Sykes, J.,

dissenting) (“Magwood held that a second-in-time habeas petition under 28 U.S.C. § 2254 is not

‘second or successive’ under 28 U.S.C. § 2244(b) if it challenges a new judgment entered after a

successful § 2254 petition.”).

Here, however, Petitioner’s initial § 2255 petition was unsuccessful. White v. United States,

No. 09-CV-2184, 2009 WL 4730486 (C.D. Ill. Dec. 4, 2009) (opinion denying initial § 2255

petition); White v. United States, No. 10-1273 (7 Cir. July 12, 2010) (Seventh Circuit mandate


denying Petitioner a certificate of appealability for his initial § 2255 petition). Rather, Petitioner’s

bar under § 2255, and the court therefore applies analysis and reasoning based on § 2254's
treatment of second or successive petitions to § 2255. Suggs, 705 F.3d at 283, n.1.


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sentence was reduced pursuant to 18 U.S.C. § 3582(c)(2) following an amendment to the sentencing

guidelines by the Sentencing Commission that was made retroactive. The motion was unopposed

by the government and disposed of with a short, one page order reducing Petitioner’s sentence that

was careful to note that “[e]xcept as otherwise provided, all provisions of the judgment dated 12/1/06

shall remain in effect.” Petitioner did not receive a sentence reduction due to a successful habeas


The court must now determine whether a sentence reduction under § 3582(c)(2) qualifies as

a “new” or “intervening” judgment under Magwood and Suggs. Motions under § 3582(c)(2) are very

limited and specific. “Section 3582(c)(2) permits a district court to reduce the term of imprisonment

for a defendant ‘who has been sentenced to a term of imprisonment based on a sentencing range that

has subsequently been lowered by the Sentencing Commission’ so long as ‘such a reduction is

consistent with the applicable policy statements issued by the Sentencing Commission.’” United

States v. Webb, 565 F.3d 789, 793 (11 Cir. 2009). In reducing a sentence under § 3582(c)(2), the


district court has to recalculate the sentence based on the amended guidelines, but, in doing so, all

original sentencing determinations remain unchanged with the sole exception of the guideline range

that has been amended since the original sentencing. Webb, 565 F.3d at 793. The court then has the

discretion, in light of the factors in 18 U.S.C. § 3553(a), to choose whether to impose the newly

calculated sentence or to keep the original sentence. Webb, 565 F.3d at 793. In contrast, a habeas

petition under § 2254 or § 2255 is a challenge to a judgment arguing that the sentence was imposed

in violation of the U.S. Constitution or federal law, or that the court was without jurisdiction to

impose such a 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(a). Motions under § 2255 and § 3582(c)(2)


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are not the same. See United States v. Purnell, No. 11-3737, 481 Fed. Appx. 262, 2012 WL

4378267 (7 Cir. Sept. 26, 2012) (“Although Purnell labeled his filing as a request for a sentence


reduction under § 3582(c)(2), his motion is not related to any retroactive amendment of the

sentencing guidelines, which is a predicate for bringing the motion. [citation omitted] Rather his

motion attacks his original sentence, advancing claims that are substantively within the scope of §

2255.”). A sentence reduction under § 3582(c)(2) is not a “new” or “intervening” judgment pursuant

to a successful habeas petition and Magwood does not apply to the instant case. See Desper v.

United States, 2010 WL 5058674, *1, n.2 (S.D. W.Va. Dec. 6, 2010) (“The court does not treat the

March 11, 2008, order reducing petitioner’s sentence pursuant to 18 U.S.C. § 3582(c)(2) as the entry

of a new judgment that might warrant a departure from the rule barring successive section 2255

motions. The order merely reduced by two points petitioner’s total offense level in accordance with

an amendment to the United States Sentencing Guidelines.”).

Petitioner’s sentence was reduced pursuant to § 3582(c)(2). It was not reduced pursuant to

a successful habeas petition. The June 2012 reduction of sentence did not constitute a new or

intervening judgment. Petitioner’s initial § 2255 was denied by this court in 2009. Thus,

Petitioner’s current Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255

(#1) is a second or successive motion under § 2255 filed without the prior certification of the

Seventh Circuit Court of Appeals and must be dismissed for lack of jurisdiction. 28 U.S.C. §



In Slack v. McDaniel, the United States Supreme Court held that “when the district court

denies a habeas petition on procedural grounds without reaching the prisoner’s underlying


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constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar

is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could

not conclude either that the district court erred in dismissing the petition or that the petitioner should

be allowed to proceed further.” Id.

Here, it is clear that Petitioner’s habeas petition was filed as a second or successive habeas

petition under § 2255 without prior certification by the court of appeals. The fact that the petition

was a second or successive petition would not allow any reasonable jurist to conclude that the court

has erred in dismissing the petition because it has no jurisdiction to entertain the case. Therefore,

a certificate of appealability is denied.


(1) The government’s Motion to Dismiss (#10) is GRANTED.

(2) Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §

2255 (#1) is DISMISSED with prejudice for lack of jurisdiction.

(3) Petitioner’s request for a Certificate of Appealability is DENIED.

(4) This case is terminated.

ENTERED this 20 day of September, 2013


s/ Michael P. McCuskey