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Coles v. Williams

United States District Court, N.D. Ohio, Eastern Division

August 19, 2019

DENNIS D. COLES, Petitioner,
v.
MARK WILLIAMS, Warden, [1]Respondent.

          MEMORANDUM OF OPINION AND ORDER

          BENITA Y. PEARSON UNITED STATES DISTRICT JUDGE

         Pending is Petitioner's Amended Motion for Relief Under 28 U.S.C. §2241 (ECF No, 11). Petitioner is currently confined in FCI Elkton in Lisbon, Ohio, which is located within the Northern District of Ohio. He asserts that based on the application of Descamps v. United States, 570 U.S. 254 (2013) (discussing categorical and modified categorical approaches to analyze (respectively) indivisible and divisible statutes), he does not qualify as an armed career criminal under 18 U.S.C. § 924(e) and that his sentence must be vacated and the case set for de novo sentencing without application of the enhancement. ECF No. 11 at PagelD #: 45. The Court has been advised, having reviewed the record, the parties' briefs, and the applicable law.

         I. Background

         Petitioner Dennis D. Coles is a prolific litigant. He was convicted, after a 2002 jury trial, in the United States District Court for the Central District of Illinois of one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Ordinarily, such a conviction warrants a sentence of no more than 10 years. 18 U.S.C. § 924(a)(2). But if the defendant has three or more prior convictions for "serious drug offenses" or "violent felonies," the Armed Career Criminal Act ("ACCA") mandates a minimum sentence of imprisonment for 15 years or more. 18 U.S.C. § 924(e)(1). On February 14, 2003, Petitioner was sentenced as an armed career criminal to a prison term of 293 months. The offense involved 12 firearms. Petitioner was found to be an organizer, leader or manager because he directed his girlfriend to obtain the firearms. He was also found to have testified falsely both at the hearing on his motion to suppress and at trial, resulting in an adjustment for obstruction of justice. He received an enhanced sentence under the ACCA because of three prior convictions for violent- or drug offenses (two for delivery of cocaine and one for armed robbery). United States v. Coles, No. 2:00-cr-20051-MPM (CD. Ill. filed Sept. 8, 2000).

         On appeal, his appointed appellate attorney sought to withdraw under Anders v. California, 386 U.S. 738 (1967) because he was unable to find a nonfrivolous issue for appeal. On May 3, 2004, the United States Court of Appeals for the Seventh Circuit granted counsel's motion to withdraw and dismissed the appeal. United States v. Coles, 97 Fed.Appx. 665 (7th Cir. 2004). Petitioner filed apro se petition for rehearing (and rehearing en banc). The request for a rehearing was still pending when the United States Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), in January 2005. The Seventh Circuit retained jurisdiction and entered a limited remand to the district court for the district judge to consider whether he "would (if required to resentence) reimpose his original sentence" in light of the now-advisory nature of the sentencing guidelines. United States v. Coles, No. 03-1451 (7th Cir. May 19, 2005) (ECF No. 169 in No. 2:00-cr-20051-MPM). On August 8, 2005, Chief United States District Judge Michael P. McCuskey reconsidered Petitioner's sentence because of Booker and entered a decision not to resentence. The district judge placed on the record his rationale, apart from the sentencing guidelines, supporting his decision to sentence Petitioner as a career criminal and declined to change the sentence as originally imposed. He concluded that, "based upon Petitioner's criminal history and the nature of the offense, had this court known that the guidelines were advisory, it would have imposed the same sentence." ECF No. 186 in No. 2:00-cr-20051-MPM. In November 2005, the Seventh Circuit affirmed Petitioner's sentence as reasonable and denied the petition for rehearing (and rehearing en banc). United States v. Coles, 153 Fed.Appx. 397 (7th Cir. 2005). The Supreme Court denied Petitioner's Petition for a Writ of Certiorari. Coles v. United States, 547 U.S. 1122 (2006) (Mem.).

         Petitioner filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate and Set Aside Sentence. Coles v. United States, No. 2:07-cv-02098-MPM-DGB (CD. Ill. filed May 4, 2007). The motion was denied by Chief Judge McCuskey on June 19, 2008. ECF No. 16 in No. 2:07-cv-02098-MPM-DGB. The court also denied via text order subsequent motions for recusal and reconsideration filed by Petitioner. The Seventh Circuit denied Petitioner's request for a certificate of appealability. Coles v. United States, No. 08-3187 (7th Cir. Dec. 15, 2008) (ECF No. 43 in No. 2:07-cv-02098-MPM-DGB). The Seventh Circuit also denied Petitioner's motions for rehearing and for rehearing en banc. Coles v. United States, No. 08-3187 (7th Cir. March 5, 2009) (ECF No. 44 in No. 2:07-cv-02098-MPM-DGB).

         Petitioner's subsequent pro se Motions for Order for Relief from Judgment Pursuant to Rule 60(b)(6) and to Alter or Amend Judgment Pursuant to Rule 59(e) or, in the Alternative, to Waive Fees and Issue a Certificate of Appealability to Proceed to the Seventh Circuit Court of Appeals were denied. Opinion and Order (ECF Nos. 48 and 50 in No. 2:07-cv-02098-MPM-DGB). Petitioner also filed a separate pro se Motion to Amend Motion for Order for Relief from Judgment Pursuant to Rule 60(b)(6). In that motion Coles stated that he had "recently learned that he is 'actually innocent' of the sentencing enhancement imposed i.e., 18 U.S.C. § 924(e); Armed Career Criminal Act." He contended that the sentencing court failed to analyze his prior convictions under the "categorical approach" described in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005). He further argued that the "actual innocence" exception to the bar against defaulted or successive habeas petitions extends to sentencing enhancements such as his status as an armed career criminal. ECF No. 47 in No. 2:07-cv-02098-MPM-DGB. Chief Judge McCuskey construed this motion as a successive § 2255 motion for which Petitioner had not obtained approval from the Court of Appeals to file, and dismissed it for lack of jurisdiction. ECF No. 48 in No. 2:07-cv-02098-MPM-DGB. The Seventh Circuit denied Petitioner's implied request for a certificate of appealability. Coles v. United States, No. 10-1175 (7th Cir. March 23, 2010).

         When Petitioner was confined in the Federal Correctional Institution in Cumberland, Maryland, he filed a pro se Motion to Correct Sentence Pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Maryland. Coles v. United States, No. l:12-cv-00528-RDB (D.Md. filed Feb. 17, 2012). On February 24, 2012, the Petition for Writ of Habeas Corpus, construed as a Motion to Vacate pursuant to 28 U.S.C. § 2255, was dismissed without prejudice for lack of jurisdiction and a Certificate of Appealability was denied. Memorandum Opinion and Order (ECF Nos. 2 and 3 in No. 1:12-cv-00528-RDB). Thereafter, the district court denied Petitioner' s pro se Motions for Reconsideration and to Alter or Amend. Orders (ECF Nos. 5 and 7 in No. 1:12-cv-00528-RDB).

         Petitioner filed apro se Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255(f)(3) in the Illinois court. Coles v. United States, No. 2:12-cv-02219-MPM-DGB (CD. Ill. filed Aug. 22, 2012). The Government filed a Motion to Dismiss, which was granted by Judge McCuskey on November 16, 2012. Petitioner's motion was also dismissed for lack of jurisdiction. ECF No. 8 in No. 2:12-cv-02219-MPM-DGB.

         Petitioner filed a pro se Petition for Extraordinary Writ seeking a writ of mandamus against Judge McCuskey in which he again contested the use at sentencing of one of his prior drug felonies as a predicate offense. In Re: Dennis Coles, No. 13-2010 (7th Cir. filed May 10, 2013). The Court of Appeals denied the Petition as an unauthorized attempt to file a successive habeas petition without permission. In Re: Dennis Coles, No. 13-2010 (7th Cir. May 28, 2013); ECF No. 197 in No. 2:00-cr-20051-MPM. The Seventh Circuit denied Petitioner's petition for rehearing. In Re: Dennis Coles, No. 13-2010 (7th Cir. June 13, 2013).

         On August 6, 2013, Petitioner filed apro se Petition for Relief in Light of and Under McQuissin v. Perkins, 569 U.S. 383 (2013) and Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) Regarding Actual Innocence in which he argued that his armed career criminal enhancement was invalid in light of Descamps. ECF No. 199 in No. 2:00-cr-20051-MPM. He argued that his prior convictions do not count as predicate offenses and that the district court at sentencing erred in coming to the opposite conclusion. Judge McCuskey noted that Coles did not argue that he is actually innocent of his conviction for possessing a firearm but reasserted his actual innocence claim regarding his designation as an armed career criminal. The Petition was dismissed for lack of jurisdiction the next day because it could only be considered a Motion under 28 U.S.C. § 2255. The court declined to issue a certificate of appealability. ECF No. 200 in No. 2:00-cr-20051-MPM. The Seventh Circuit denied Petitioner's request for a certificate of appealability. Coles v. United States, No. 13-2821 (7th Cir. Jan. 28, 2014).

         Petitioner filed apro se Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255(h)(1). Coles v. United States, No. 14-2359 (7th Cir. filed June 23, 2014). On July 11, 2014, the Seventh Circuit dismissed the Application and sanctioned Petitioner for persisting in filing frivolous attacks on his sentence.[2]

Coles is fined $500. Until he pays the sum in full to the clerk of this court, he is barred from filing further civil suits in the courts of this circuit, and any papers he submits attacking his current criminal judgment, including future collateral attacks, shall be returned unfiled and any applications for leave to file collateral attacks will be deemed denied on the 30th day unless the court orders otherwise. See Alexander v. United States, 121 F.3d3l2 (7th Cir. 1997); Support Sys. Int'l v. Mack 45 F.3d 185 (7th Cir. 1995).

         Petitioner paid the $500 fine on March 3, 2016. Thereafter, the Court of ...


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