MEMORANDUM OPINION AND ORDER
Presently before the Court is Petitioner Stephen Susinka’s pro se motion to reconsider this Court’s order denying his petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (R. 10, Pet’r’s Mot.) For the reasons set forth below, Petitioner’s motion is denied, and this case is dismissed with prejudice.
RELEVANT FACTS
The relevant facts relating to Petitioner’s criminal conviction are set forth in a pair of opinions by the Seventh Circuit Court of Appeals, see United States v. Benabe,
Petitioner was one of sixteen individuals indicted by a federal grand jury on various racketeering-related charges in 2006. Petitioner and his codefendants were members of the Aurora Deuces, the Aurora, Illinois chapter of the Insane Deuce Nation street gang. Petitioner was responsible for carrying guns and going on missions for the Insane Deuces. On more than one occasion, he served as a driver for other Insane Deuces who murdered or attempted to murder members of rival gangs. Petitioner was charged with racketeering conspiracy (Count One) and narcotics conspiracy (Count Nine).
In an effort not to overwhelm the jury, and due to the logistical challenge of trying so many defendants in a single courtroom, this Court severed the case into two trials. Petitioner was tried with the alleged leaders of the gang. On April 21, 2008, after a two-month trial and more than two weeks of deliberation, a jury convicted Petitioner of participating in a racketeering conspiracy (Count One) and was unable to reach a verdict on the narcotics conspiracy charge in Count Nine. The Court declared a mistrial on Count Nine. On January 20, 2009, this Court sentenced Petitioner to twenty years of incarceration on Count One to run concurrently with his pending state sentence, followed by five years of supervised release, and imposed a $2,500.00 fine.
On January 22, 2009, Petitioner filed his notice of appeal, challenging both his conviction and his sentence. The Seventh Circuit affirmed his conviction on August 18, 2011, and modified his sentence to impose a term of three years of supervision upon his release from prison rather than five. United States v. Benabe,
Petitioner filed a petition for writ of certiorari with the Supreme Court on January 26, 2012.
Petitioner filed the instant habeas petition pursuant to 28 U.S.C. § 2255 on March 5, 2013. (R. 1, Pet’n.) On March 18, 2013, he filed an amended petition (the “Petition”), (R. 6, Am. Pet’n), and moved to toll the deadline for filing his petition, (R. 5, Mot. Toll Deadline). The Court denied Petitioner’s motion to toll the deadline and his amended petition on March 21, 2013. (R. 7, Min. Entry.) In its order, the Court stated:
After a careful review of Petitioner’s untimely motion pursuant to 28 U.S.C. Section 2255, said motion is denied with prejudice for the following reasons. The trial record and direct appeal opinion, U.S. v. Benabe,654 F.3d 753 (7th Cir. 2011)[,] confirm that said untimely petition fails to assert any valid, non-waived constitutional error. The defendant received a fair trial and sentence while represented by two competent trial counsel.
(Id.) Petitioner now moves the Court to reconsider its denial of the Petition. (R. 10, Pet’r’s Mot.) Petitioner argues that the Petition was not untimely because he received multiple extensions from the Supreme Court to his deadline for filing his certiorari petition. (Id. at 2-3.) Petitioner additionally argues that the Court’s statement that Petitioner failed to “assert any valid, non-waived constitutional error” requires further explanation because Petitioner asserted valid constitutional claims of ineffective assistance of counsel and a Sixth Amendment violation at sentencing. (Id. at 3-8; R. 21, Pet’r’s Suppl. at 19-51.) Finally, Petitioner contends that even if the Court denies his section 2255 petition, it should correct his sentence to credit the time he served in state custody as part of his federal sentence. (R. 10, Pet’r’s Mot. at 8.)
Subsequent to and in support of his motion for reconsideration, Petitioner has filed two declarations, (R. 19; R. 24); a supplement, (R. 21); a special supplement regarding the applicability of Alleyne v. United States, — U.S. -,
LEGAL STANDARDS
A “motion to reconsider” does not exist under the Federal Rules of Civil Procedure. Talano v. NW. Med. Faculty Found.,
Rule 59(e) “enables a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.” Russell v. Delco Remy Div. of Gen. Motors Corp.,
Section 2255 allows an incarcerated prisoner to request his sentence be vacated on “the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. “[R]elief under 28 U.S.C. § 2255 is limited to an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Bischel v. United States,
ANALYSIS
I. Timeliness of the Petition
Petitioner first argues that the Court’s denial of the Petition as untimely was an error of law. (R. 10, Pet’r’s Mot. at 3.) A petition for habeas corpus must be filed, as relevant here, within a year of “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). “Finality attaches when [the Supreme Court] affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States,
Petitioner argues that the instant petition is not untimely, however, because the Supreme Court granted him extensions of the deadline to file his petition for certiora-ri. (R. 10, Pet’r’s Mot. at 3.) Petitioner contends that on January 26, 2012, he delivered his petition for writ of certiorari to the mail room staff at the prison. (R. 24, Pet’r’s Decl. ¶ 5.) On March 2, 2012, Petitioner received a letter from the Clerk of the Supreme Court acknowledging receipt of his petition for writ of certiorari. (R. 19 at 11, Mar. 2, 2012 Letter.) The Clerk returned Petitioner’s certiorari petition because it did not include an affidavit or declaration of indigency and it did not include the lower court’s opinion. (Id.) The letter requested that Petitioner correct those errors and resubmit his certio-rari petition as soon as possible, and it informed him that “[ujnless the petition is submitted to this Office in corrected form within 60 days of the date of this letter, the petition will not be filed.” (Id.) Petitioner states that he resubmitted his cer-tiorari petition by hand delivery to the prison mail room staff on April 27, 2012. (R. 24, Pet’r’s Decl. ¶ 11.)
On May 14, 2012, Petitioner received a second letter from the Clerk of the Supreme Court acknowledging receipt of his petition for writ of certiorari. (R. 19, Pet’r’s Decl. at 13, May 14, 2012 Letter.) The Clerk returned Petitioner’s certiorari petition because it did not include an affidavit or declaration of indigency. (Id.) The letter once again requested that Petitioner correct the error and resubmit his certiorari petition as soon as possible, and it once again informed him that “[ujnless the petition is submitted to this Office in corrected form within 60 days of the date of this letter, the petition will not be filed.” (Id.) Petitioner thus contends that he had until July 14, 2013 to file his habeas petition.
Petitioner miscalculated his deadline for filing his petition for writ of certio-rari as January 26, 2012, when in fact his deadline was January 24, 2012 — 90 days after the Seventh Circuit’s denial of rehearing. His petition for writ of certiorari was therefore untimely by two days. An untimely certiorari petition is generally insufficient to toll the deadline for filing a habeas petition. See, e.g., United States v. Buckles,
An extension of time by the Supreme Court in which to file a petition for writ of certiorari may extend the deadline for filing a habeas petition. In United States v. Walker, a district court in the Tenth Circuit faced this issue. No. 04-CR-0099-CVE,
In dicta in Warmus v. United States, the Eleventh Circuit stated that it had “not previously held that by granting an extension for the time to file a certiorari petition, the Supreme Court also delays the date on which a conviction becomes final,” but that “such a result would be consistent with” prior holdings “that the judgment of conviction becomes final once the time expires for filing a petition for certiorari.”
The cases Petitioner cites in an attempt to avoid this conclusion do not support his position. In Estremera v. United States, No. 09 C 6519,
The Court finds no manifest error of law in its conclusion that the Petition, which was filed on March 5, 2013, is untimely because judgment became final on January 24, 2012.
II. Petitioner’s Constitutional Claims
Petitioner argues that to the extent that the Court’s prior denial of the Petition was a ruling on the merits, the Court should reconsider its ruling. (R. 10, Pet’r’s Mot. at 4.) Petitioner contends that his Sixth Amendment rights were violated when the Court made a finding at sentencing that Petitioner had. participated in the murder of Robert Perez.
The statutory maximum for the racketeering conspiracy Petitioner was convicted of by the jury is 20 years imprisonment. 18 U.S.C. § 1963(a). Courts have broad discretion to impose a sentence within a “prescribed range of punishment,” and “the exercise of such discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts.” Dillon v. United States,
Petitioner next argues that the recent Supreme Court decision in Alleyne v. United States is “an intervening change in the law [that] undermines the validity of
Petitioner argues, however, that Alleyne did not announce a new rule of criminal procedure but rather reaffirmed an old rule. (R. 23, Special Suppl. at 8-12.) The Court does not consider Petitioner’s arguments in support of this position because the Seventh Circuit has expressly rejected this position. Simpson v. United States,
In the alternative, Petitioner argues that Alleyne establishes a rule of “watershed” magnitude such that it falls under one of the exceptions to Teague’s bar against retroactive application. (R. 23, Special Suppl. at 12 (citing Teague,
Petitioner does not cite a case in which Apprendi was applied retroactively on collateral review, however, and this Court is unable to locate any such case. To the contrary, “[n]o Court of Appeals, let alone [the Supreme] Court, has held that Ap-prendi has retroactive effect.” Harris v. United States,
III. Petitioner’s Request for a Sentencing Correction
Finally, Petitioner argues that the Court’s denial of his request for a sentence correction violates the principles of res judicata because at sentencing, this Court “decided to rule in favor of Petitioner” and ruled that his sentence would be retroactively concurrent with his state sentence. (R. 10, Pet’r’s Mot. at 4-5.) Sometime in 2002, Petitioner received a nine-year sentence in the Illinois Department of Corrections. Because he was in federal custody pursuant to a writ of habeas corpus ad prosequendum, Petitioner continued to serve his state sentence while in federal custody during trial and trial preparations. See Short v. Revell,
The Court has carefully examined its sentencing order and the transcript of the sentencing hearing. The order sentenced Petitioner to twenty years of imprisonment “to run concurrent with [his] pending state sentence.” At Petitioner’s January 20, 2009 sentencing hearing, the Court told Petitioner it would use its discretion “to make your sentence to be served concurrent with your current state sentence.” Neither at sentencing nor in the sentencing order did the Court indicate that the sentence would be retroactively concurrent. Instead, the Court imposed a sentence that would run concurrent with the undischarged remainder of Petitioner’s state sentence. Petitioner’s instant request for the Court to correct his sentence, (see R. 10, Pet’r’s Mot. at 8), is not based on the principles of res judicata^ but on Petitioner’s misconception that the Court essentially sentenced him to only 13 years because it gave him credit for his incarceration on state charges prior to his federal sentencing. As the Seventh Circuit explained in affirming the denial of Petitioner’s petition under 28 U.S.C. § 2241, this premise is inaccurate. Susinka v. Copenhaver,
CONCLUSION
For the foregoing reasons, Petitioner’s motion for reconsideration of the Court’s denial of petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 (R. 10) is DENIED.
Notes
. Even though Petitioner's certiorari petition was postmarked January 30, 2012, (R. 19 at 11, Mar. 2, 2012 Letter), pro se prisoners are considered to have filed documents with a court upon delivering the documents to the prison authorities to mail. Houston v. Lack,
. Petitioner miscalculated this deadline, as sixty days from May 14, 2012, was July 13, 2012. This miscalculation is inconsequential to the issues at hand.
. To the extent that Petitioner seeks to use his declaration to extend his motion to reconsider to include the Court’s denial of his motion to toll the deadline for filing his section 2255 petition, (R. 5), the Court denies such motion as moot because the Petition is denied on the merits.
. Petitioner also contests the Court’s denial of his ineffective assistance of counsel claim. (R. 10, Pet’r’s Mot. at 4-6.) In his motion, however, Petitioner simply rehashes his arguments from his original petition, which this Court has already ruled on, rather than pointing to any error of law or newly discovered evidence. (Compare id.; R. 21, Pet’r’s Suppl. at 19-43, with R. 3, Pet’r’s Mem. at 1-9.) Accordingly, this issue is not the proper subject of a Rule 59(e) motion, see Sigsworth,