United States District Court, N.D. Ohio, Eastern Division
DENNIS D. COLES, Petitioner,
MARK WILLIAMS, Warden, Respondent.
MEMORANDUM OF OPINION AND ORDER
Y. PEARSON UNITED STATES DISTRICT JUDGE
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.
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).
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.).
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).
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).
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).
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.
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).
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).
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.
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).
paid the $500 fine on March 3, 2016. Thereafter, the Court of