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United States v. Daily

United States District Court, D. Minnesota

April 27, 2017


          Carlous Lindell Daily, pro se.

          Michael L. Cheever, Assistant United States Attorney, for plaintiff.


          JOHN R. TUNHEIM Chief Judge United States District Court

         Petitioner Carlous Lindell Daily is serving a 420-month term of imprisonment for bank robbery offenses. This Court resentenced Daily following a prior motion under 28 U.S.C. § 2255, which prompted the Court's discovery of an error in Daily's initial sentencing. Daily has now filed several additional § 2255 motions and supplemental memoranda challenging both of his prior sentencings. The United States moves to dismiss several of Daily's motions. Because Daily has not shown that a new rule of constitutional law applies retroactively to alter his sentence or that he suffered ineffective assistance of counsel, the Court will deny Daily's motions.


         On May 10, 2005, a jury found Daily guilty of one count of conspiring to commit bank robbery, one count of bank robbery, and one count of using a firearm during a crime of violence. (Jury Verdict, May 10, 2005, Docket No. 150.) The jury acquitted Daily of an additional count of bank robbery and an additional count of using a firearm during a crime of violence. (Id.) On October 3, 2005, Daily was sentenced to a total of 444 months imprisonment - the bottom of the guideline range determined at sentencing. (J. in Criminal Case (“2005 J.”), Oct. 13, 2005, Docket No. 165.) The Eighth Circuit affirmed Daily's conviction and the Supreme Court denied Daily's petition for writ of certiorari. United States v. Daily, 488 F.3d 796 (8th Cir. 2007), cert. denied, 552 U.S. 1222 (2008).

         On January 28, 2009, Daily filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Mot. to Vacate, Jan. 28, 2009, Docket No. 265.) In reviewing the motion, the Court noticed an error in the sentencing guideline calculation applied at Daily's sentencing, and after requesting briefing from the parties, found Daily was entitled to relief based on his counsel's failure to object to the erroneous guideline range. (Mem. Op. & Order Den. Mot. to Vacate (“2010 Order”) at 16, Apr. 23, 2010, Docket No. 274; Mem. Op. & Order Granting Habeas Relief, Sept. 7, 2011, Docket No. 294.) On August 11, 2011, considering the corrected guideline range, the Court resentenced Daily to a total term of 420 months imprisonment. (Am. J. in Criminal Case (“Am. J.”), Sept. 7, 2011, Docket No. 295.) The Court denied Daily's motion to vacate in all other respects.[1] (2010 Order at 7-15; Order Den. Pro Se Mot., Sept. 7, 2011, Docket No. 293.) The Eighth Circuit upheld the new sentence. United States v. Daily, 703 F.3d 451 (8th Cir. 2013).

         In 2014, Daily again attempted to file a § 2255 motion. The Clerk of Court sent Daily a letter explaining that the application appeared to be a successive petition under § 2255, and that Daily needed to obtain pre-authorization from the Eighth Circuit prior to filing. (Letter from Clerk's Office, Apr. 8, 2014, Docket No. 317.) On April 28, 2014, Daily responded by filing a motion to amend judgment pursuant to Rule 59(e), (Mot. to Am. J., Apr. 28, 2014, Docket No. 318), which the Court denied on May 28, 2014, (Order, May 28, 2014, Docket No. 319.) Daily also filed a motion for a certificate of appealability, (Req. for Issuance of Certificate of Appealability, Sept. 8, 2014, Docket No. 321), which the Court denied, (Order, Oct. 20, 2014, Docket No. 323).

         Daily appealed the Court's denial of his motion to amend judgment. (Notice of Appeal, Sept. 8, 2014, Docket No. 320.) The Eighth Circuit construed the appeal as a petition for a writ of mandamus, which it granted, and directed the Court “to rule on Petitioner Daily's § 2255 motion.” (J. of USCA, Nov. 10, 2014, Docket No. 327.) The Eighth Circuit denied the United States' petition for rehearing.

         Daily refiled the attempted 2014 motion with the Court on October 26, 2015. (Mot. to Vacate (“2014 Mot.”), Oct. 26, 2015, Docket No. 331.) Daily also filed a supplemental petition on January 4, 2016, (Suppl. Mot. to Vacate, Jan. 4. 2016, Docket No. 337), and two additional supplemental motions or memoranda in June and August 2016, (Suppl. Mot. & Mem. of Law, June 20, 2016, Docket No. 343; Pet.'s Req. for Enlargement of Time to File Suppl. Mot., Aug. 29, 2016, Docket No. 345). The United States moved to dismiss two of these supplemental filings. (Government's Mot. to Dismiss, Jan. 6, 2016, Docket No. 339; Government's Mot. to Dismiss, June 21, 2016, Docket No. 344.) The Court will now consider these pending motions.[2]



         Section 2255 allows a federal prisoner a limited opportunity to seek post-conviction relief on the grounds 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(a). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).


         First, the United States initially challenged the Court's jurisdiction to hear Daily's petition, arguing that it was second and successive under 28 U.S.C. § 2255(h). However, the United States now acknowledges that Daily's motion is not second or successive because it follows his resentencing, which constitutes a new judgment. (Government's Mem. in Opp'n to Def.'s 2016 § 2255 Mot. at 1-2, June 16, 2016, Docket No. 342); see also Magwood v. Patterson, 561 U.S. 320, 341-42 (2010) (“[W]here . . . there is a ‘new judgment intervening between the two habeas petitions, ' an application challenging the resulting new judgment is not ‘second or successive' at all.” (quoting Burton v. Stewart, 549 U.S. 147, 156 (2007))).


         The United States argues that Daily's § 2255 motion is barred by the one-year statute of limitations. 28 U.S.C. § 2255(f). In relevant part, § 2255(f) provides that the statute of limitations begins to run on “the date on which the judgment of conviction becomes final.” “[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.” Clay v. United States, 537 U.S. 522, 525 (2003). Thus, Daily's statute of limitations began to run on April 15, 2013, which is ninety days after the Eighth Circuit's decision, dated January 15, 2013, affirming his new sentence. See id.; Supreme Court Rule 13.1 (requiring a petition for writ of certiorari be filed within ninety days after entry of judgment). Daily submitted his 2014 motion on April 7, 2014. (See Letter from Clerk's Office; 2014 Mot. (showing initial date stamp of April 7, 2014).) Thus, Daily's 2014 motion was timely because he submitted it within a year after his second judgment of conviction became final.

         Moreover, because Daily filed his additional § 2255 motions and supporting memoranda while his prior § 2255 motion was pending, the Court construes them as motions to amend, and they are not barred as second or successive petitions. United States v. Sellner, 773 F.3d 927, 931-32 (8th Cir. 2014); see also Fed. R. Civ. P. 15(a)(2) (stating that leave to file a motion to amend should be “freely ...

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