Levence Simpson v. United States

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Levence SIMPSON, Applicant, v. UNITED STATES of America, Respondent.

No. 13-2373.

United States Court of Appeals, Seventh Circuit.

Submitted June 27, 2013. Decided July 10, 2013.

721 F.3d 875

EASTERBROOK, Chief Judge.

Levence Simpson (submitted), Pekin, IL, pro se. Darilynn J. Knauss, Attorney, Office of the United States Attorney, Peoria, IL, for Respondent. Before EASTERBROOK, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

fied. Before the change made in 2011, developmentally disabled persons received greater subsidies than any other sub-category of the disabled. The 2011 revisions cut their subsidy, but plaintiffs do not contend that they are now treated worse than some other set of disabled persons.

Suppose it costs at least $50,000 a year to provide for care of a developmentally disabled person in a group home and more (say, $75,000) to pay for top-quality group care. Suppose that it costs only $40,000 a year to provide for care of a blind person in a group home. Finally, suppose that until 2011 Wisconsin was paying $75,000 a year for each developmentally disabled person and $40,000 a year for each blind person, but that in 2011 the payments were cut to $50,000 and $40,000 for these groups. Although one group lost money and the other did not, this would not be discrimination against the developmentally disabled; it would instead be the end of discrimination in favor of the developmentally disabled.

If care for dyslexia costs only $5,000 a year for several years, then nothing after training is completed, it would amount to “discrimination” to provide greater payments for dyslexics than for the developmentally disabled. But plaintiffs do not say that the amount provided for their care is below what Wisconsin provides for some other disability that is less expensive to cope with. They do not even say that they are receiving a lower percentage of the cost of their care than persons with other kinds of disabilities do.

Instead, plaintiffs’ theory is that any reduction that leaves them unable to remain in group homes that their physicians or other providers think the optimal placement for them is forbidden “discrimination.” That is untenable, unless the state is providing other groups of disabled persons with whatever care, in whatever location, their physicians most favor, and plaintiffs do not contend this. Plaintiffs tell us nothing about what kind of care persons with other disabilities receive in Wisconsin. Their sole argument is that Wisconsin reduced their own subsidies. Apart from the possibility (which is unripe) that the reduction may lead to undue institutionalization, this is not a theory of “discrimination” at all. It is a claim of absolute entitlement. Perhaps such a claim could be made under the Medicaid Act (a principal source of funds for the Wisconsin Care Program), but plaintiffs told the district court, and repeated at oral argument on appeal, that they are not contending that Wisconsin has violated the duties it assumed when joining the Medicaid program.

In sum, plaintiffs’ contention that Wisconsin‘s decision will lead to their institutionalization is unripe, and their contention that Wisconsin has discriminated in some other way founders for lack of a useful theory of “discrimination.” The judgment of the district court accordingly is affirmed.

EASTERBROOK, Chief Judge.

Levence Simpson was convicted of drug offenses and sentenced to 240 months’ imprisonment, which the district court found to be the statutory minimum. See 21 U.S.C. § 841(b)(1)(A). We affirmed.

337 F.3d 905 (7th Cir. 2003). Simpson filed and lost a collateral attack under 28 U.S.C. § 2255, in which he contended that his lawyer had furnished ineffective assistance.

2006 WL 1305239, 2006 U.S. Dist. LEXIS 27409 (C.D. Ill. May 9, 2006), application for certificate of appealability denied,

2006 U.S. Dist. LEXIS 59450 (C.D. Ill. Aug. 22, 2006). Three years later he filed a second collateral attack, which the district court dismissed as lacking the required appellate authorization.

2009 WL 4923078, 2009 U.S. Dist. LEXIS 113836 (C.D. Ill. Dec. 7, 2009).

At the time of Simpson‘s sentencing, either the judge or the jury could decide whether a defendant‘s conduct met the requirements for a mandatory minimum sentence.

Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). But

Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), overrules

Harris and holds that a judge cannot make this decision unless the defendant waives his entitlement to a jury. (A jury also is unnecessary if the defendant admits facts that require a minimum sentence, but Simpson did not do that.) Simpson contends that

Alleyne entitles him to pursue a second collateral attack because it establishes a new constitutional rule. 28 U.S.C. § 2255(h)(2).

Simpson proposes another attack on the quality of his legal assistance, which is barred by 28 U.S.C. § 2244(b)(1). See

Bennett v. United States, 119 F.3d 470 (7th Cir. 1997). But he also seeks permission to make a claim resting directly on the jury clause of the sixth amendment, the basis of

Alleyne. That theory is unaffected by § 2244(b)(1).

Alleyne establishes a new rule of constitutional law. But we deny Simpson‘s application nonetheless, for two reasons.

First, § 2255(h)(2) applies only when the new rule has been “made retroactive to cases on collateral review by the Supreme Court“. The declaration of retroactivity must come from the Justices. See

Dodd v. United States, 545 U.S. 353, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005);

Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). The Court resolved

Alleyne on direct rather than collateral review. It did not declare that its new rule applies retroactively on collateral attack.

Alleyne is an extension of

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Justices have decided that other rules based on

Apprendi do not apply retroactively on collateral review. See

Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). This implies that the Court will not declare

Alleyne to be retroactive. See also

Curtis v. United States, 294 F.3d 841 (7th Cir. 2002) (

Apprendi itself is not retroactive). But the decision is the Supreme Court‘s, not ours, to make. Unless the Justices themselves decide that

Alleyne applies retroactively on collateral review, we cannot authorize a successive collateral attack based on § 2255(h)(2) or the equivalent rule for state prisoners, 28 U.S.C. § 2244(b)(2)(A).

Second, Simpson could not benefit even if

Alleyne already had been declared retroactive, because the jury in his case returned a special verdict finding that he conspired to distribute more than one kilogram of heroin and more than 50 grams of crack. The judge later estimated his relevant conduct at 3.4 kilograms of heroin and 300 grams of crack, but the jury‘s verdict by itself requires a 240-month minimum sentence under § 841(b)(1)(A) as it stood when Simpson committed his crimes.

The application therefore must be denied. Simpson has asked us to give him 30 days to file a supplemental memorandum supporting his application, but delay would be both pointless (the two reasons we have given are independently fatal to his application) and unlawful: Congress requires courts to act within 30 days on requests to file additional collateral attacks. 28 U.S.C. § 2244(b)(2)(D). We are not authorized to extend such deadlines. See, e.g.,

Miller v. French, 530 U.S. 327, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000).

The motion for additional time to file a memorandum is denied. The application for leave to file another collateral attack is dismissed.

Case Details

Case Name: Levence Simpson v. United States

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 10, 2013

Citation: 721 F.3d 875

Docket Number: 13-2373

Court Abbreviation: 7th Cir.