ORDER ON THRESHOLD REVIEW OF PETITION UNDER 28 U.S.C. 2255

MICHAEL J. REAGAN, District Judge.

In June 2007, in Case No. 07-cr-30012-MJR, Steven McCoy pled guilty to possession with intent to distribute 13.3 grams of cocaine base, in violation of 21 U.S.C. 841(a)(1). The undersigned District Judge sentenced McCoy in October 2007 to 200 months in prison (running consecutively to two state court-imposed sentences McCoy was serving already), followed by five years of supervised release. Judgment was entered on October 5, 2007. No direct appeal was taken.

On June 13, 2016, McCoy filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255. The motion is based on two United States Supreme Court decisions — Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2251 (June 26, 2015), which found unconstitutional the residual clause of the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(ii), and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (April 18, 2016), which held that Johnson announced a new substantive rule that is retroactively applicable to cases on collateral review.

Rule 4 of the RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS directs the Judge who receives a § 2255 motion to promptly examine it. If it plainly appears from the motion, any exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion. Otherwise, the District Court must order the United States Attorney to file a response within a fixed time. Rule 8 of the RULES GOVERNING SECTION 2255 PROCEEDINGS explains that if the motion is not dismissed, then depending on the issues raised and briefs filed, the Judge must determine whether an evidentiary hearing is warranted.

A one-year limitation period governs petitions to vacate, set aside, or correct a sentence. 28 U.S.C. 2255(f); Narvaez v. United States, 674 F.3d 621, 625 (7th Cir. 2011). The one-year period is triggered by the latest of four events and typically runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. 2255(f)(1); Clay v. United States, 537 U.S. 522, 524 (2003). McCoy's judgment became final years ago, but he implicitly relies on § 2255(f)(3), which allows a petition to be filed within one year of "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."

Assuming, arguendo, that the petition is timely under § 2255(f)(3), it does not automatically follow that McCoy is entitled to relief under § 2255. For instance, it is not clear what effect (if any) his waiver of the right to collaterally attack his sentence has. In the written plea agreement he executed, in exchange for concessions by the United States, McCoy waived his right to challenge his sentence under 28 U.S.C. 2255 (see Doc. 37 in Case No. 07-30012). But the plea agreement carved out an exception for a change in federal sentencing laws declared retroactive by the United States Supreme Court or the Seventh Circuit which renders the Defendant actually innocent of the charges (Id., pp. 10-11). The plea agreement also contains an exception to the waiver for "appeals based upon Sentencing Guideline Amendments which are made retroactive by the United States Sentencing Commission" (Id., p. 11). It also bears note that McCoy was sentenced not under the residual clause of the Armed Career Criminal Act (which was struck down in Johnson), but under the career offender provision in the U.S. Sentencing Guidelines (Section 4B1.1(a))1. But the Court will allow the parties to brief whether McCoy has a viable Johnson-based claim for § 2255 relief. The Court will decide later whether a hearing is needed.

In accord with Administrative Order 176 of this District Court, the Federal Public Defender's Office for the Southern District of Illinois is APPOINTED to assist McCoy on his Johnson-based § 2255 petition. A copy of this Order shall be sent both to Federal Public Defender Phillip J. Kavanaugh and to Petitioner McCoy.

The Court SETS THE FOLLOWING BRIEFING SCHEDULE on the § 2255 petition.

IT IS SO ORDERED.