Demetrius G. Jackson v. USA, 04-3657.  On July 30, 1999, Demetrius G. Jackson was sentenced 262 months’ imprisonment as a career offender under U.S.S.G. § 4B1.1. Nearly five years later, he succeeded in reducing one of the predicate state convictions for this enhancement from a felony to a misdemeanor.

He then brought before the district court this collateral attack on his federal sentence.  Jackson had previously filed a § 2255 petition in 2000.

Jackson argues that his  appeal from the district court’s dismissal is properly before the 7th Circuit under 18 U.S.C. § 3742(a)(2), which provides: "A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence . . . was imposed as a result of an incorrect application of the sentencing guidelines."

At the outset, the 7th Circuit notes that this Circuit has never offered § 3742 as an avenue to review the denial of a collateral attack; it has only been considered a route for direct appeal.

The title of Jackson’s motion in the district court was captioned: "Motion to Reopen, Reduce and Resentence Petitioner to 18 U.S.C. § 3559(c)(7); and Writ of Error Corum [sic] Nobis."

The 7th Circuit then clearly states that any motion filed in the district court that imposed the sentence, and is substantively within the scope of § 2255, is a motion under § 2255, no matter what title the prisoner plasters on the cover. "Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari, capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error, or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls."

Indeed.

As such, the district court’s decision to dismiss Jackson’s petition as a second successive petition is AFFIRMED.

USA v. Terrance Thornton, 05-1465.  Thornton was sentenced to 252 months’ imprisonment (21 years) under the Armed Career Criminal Act, 18 U.S.C. § 924(e), ("ACCA"). Prior to trial, the district judge denied Thornton’s motion to suppress, which argued the evidence against him was obtained as a result of an unconstitutional stop and arrest.

Thornton argues the officers did not have reasonable suspicion to stop him when he first came out of the gas station on the way to his vehicle.  Here, all the officer did was ask Thornton questions as he came out of the gas station, which Thornton answered voluntarily.

The 7th Circuit finds that here, the officers neither displayed their weapons nor touched either suspect, and there is no indication whatsoever in the record that the officers’ tone, language, or other action would have communicated to Thornton that he was seized. Florida v. Bostick, 501 U.S. 429, 437 (1991).  Thus, no reasonable suspicion was necessary when the Officer first approached Thornton.

("[L]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.") (quoting United States v. Drayton, 536 U.S. 194, 200 (2002)).

Further, the 7th Circuit agrees with the district judge that reasonable suspicion to stop Thornton existed once he voluntarily tied himself to the SUV by telling the officer that his girlfriend was driving it.

Finally, the 7th Circuit finds that this proper investigatory stop did not turn into an arrest without probable cause. Within three to four minutes of initially approaching Thornton, the officers learned that a warrant was outstanding for his arrest. That information supports probable cause for the arrest whether or not the information was correct. See United States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001)

As such, the district judge made no error in denying Thornton’s motion to suppress.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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