UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

UNITED STATES OF AMERICA 

 VS. 

ERNEST D. GLASPER 

) 

) 

) 

) 

) 

CAUSE NO. 3:14-CV-167-RLM

(ARISING OUT OF 3:07-CR-111-RLM)

OPINION and ORDER 

 On January 4, 2008, Ernest Glasper pleaded guilty to possession of a 

firearm as a convicted felon, violating 18 U.S.C. § 922(g)(1), and using/carrying 

a firearm during and in relation to carjacking, violating 18 U.S.C. § 924(c). In 

an amended plea agreement, entered on February 15, 2008, Mr. Glasper 

agreed to change the binding sentence recommendation from 84 months’ 

imprisonment to 141 months’ imprisonment and to waive any objections to the 

sentencing guideline calculations in the Presentence Investigation Report. In 

return, the government agreed not to prosecute Mr. Glasper for perjury 

stemming from his plea hearing testimony and his testimony at the trial of his 

co-defendant. Accordingly, on March 13, 2008, the court sentenced Mr. 

Glasper to an aggregate sentence of 141 months’ imprisonment. More than five 

years later, Mr. Glasper has filed a petition for review of his sentence pursuant 

to 28 U.S.C. § 2255 and pursuant to his First Amendment right to petition the 

government for “redress of grievance.” Mr. Glasper’s primary contention is that 

the recently decided Supreme Court decision Alleyne v. United States, 133 

S.Ct. 2151 (2013), alters his sentence. 

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 A prisoner must file a § 2255 motion within one year of the date on 

which (1) the judgment of conviction becomes final, (2) the governmental action 

violating the Constitution or federal law that prevents the prisoner from making 

his motion is removed, (3) the Supreme Court recognizes the right asserted, or 

(4) the facts supporting the claim could have been discovered. 28 U.S.C. § 

2255(f). Mr. Glasper argues that the right he asserts pursuant to the Alleyne 

decision is a new right that applies retroactively to cases on collateral review. 

Prisoners have one year from the date on which the Supreme Court initially 

recognized the asserted right to file a § 2255 petition, if that right has been 

newly recognized by the Supreme Court and made retroactively applicable to 

cases on collateral review. 28 U.S.C. § 2255(f)(3). The Supreme Court hasn’t 

declared that the rule of constitutional law established in Alleyne applies 

retroactively on collateral attack. Simpson v. United States, 721 F.3d 875, 876 

(7th Cir. 2013). Mr. Glasper also argues that he couldn’t have discovered the 

facts supporting his claim that the judge couldn’t make a finding that he 

brandished the firearm until the Supreme Court decided Alleyne on June 17, 

2013. Prisoners have one year from the date on which the facts supporting the 

claim presented could have been discovered through the exercise of due 

diligence to file a § 2255 motion. 28 U.S.C. § 2255(f)(4). Mr. Glasper doesn’t 

assert the discovery of any new facts in his case. Mr. Glasper doesn’t claim that 

§ 2255(f)(2) applies to his motion, so that leaves § 2255(f)(1) as the applicable 

start date of the statute of limitations. Mr. Glasper had one year from the date 

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on which his judgment of conviction became final to file a § 2255 motion. 28 

U.S.C. § 2255(f)(1). He didn’t file a direct appeal of the judgment, so his 

conviction became final when his opportunity to appeal expired. Clay v. United 

States, 537 U.S. 522, 525 (2003); Shakespeare v. United States, No. 1:13-CV236, 2013 WL 2942842, at *2 (S.D. Ind. June 13, 2013). The court entered 

judgment against Mr. Glasper on the date of his sentencing, March 13, 2008, 

and Mr. Glasper then had fourteen days in which to file a notice of appeal. FED.

R. APP. P. 4(b). His one-year period to file a § 2255 motion thus began on March 

27, 2008. The current motion was filed on January 9, 2014, well outside the 

one-year period. Mr. Glasper’s § 2255 motion is untimely. 

 Alternatively, Mr. Glasper argues that his First Amendment right to 

petition the government for “redress of grievance” has no statute of limitations. 

The right to petition the government for redress of grievances includes the right 

of access to the courts. Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009). 

“While the right of access to the courts requires prison officials to provide 

prisoners with the necessary tools ‘to attack their sentences, directly or 

collaterally,’ and ‘to challenge the conditions of their confinement,’ it is not an 

abstract, freestanding right to legal assistance.” Id. (citations omitted). The 

right is “tied to and limited by a prisoner’s right to vindication for a separate 

and distinct right to seek judicial relief for some wrong.” Id. Mr. Glasper doesn’t 

assert an underlying claim that implicates his right of access to the courts. A 

prisoner whose complaint implies the invalidity of his ongoing custody must 

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seek review by collateral attack pursuant to the appropriate federal or state 

statute. Simpson v. Nickel, 450 F.3d 303, 306-307 (7th Cir. 2006). Mr. Glasper 

asks the court to vacate or correct his sentence, so his claim must be brought 

through a collateral attack, such as a § 2255 motion. As already discussed, 

however, Mr. Glasper’s § 2255 motion is untimely. 

 Even if the § 2255 motion were timely, Mr. Glasper wouldn’t benefit from 

the Alleyne decision. Alleyne overruled Harris v. United States, 536 U.S. 545 

(2002), and held that “[a]ny fact that, by law, increases the penalty for a crime[, 

including a mandatory minimum sentence,] is an ‘element’ that must be 

submitted to the jury and found beyond a reasonable doubt.” Alleyne v. United 

States, 133 S.Ct. 2151, 2155 (2013). Harris distinguished between facts that 

increase the statutory maximum, which a jury had to determine, and facts that 

increase the mandatory minimum, which the sentencing judge could decide. 

Alleyne v. United States, 133 S.Ct. at 2155. After Alleyne, facts that increase 

either the statutory maximum or the mandatory minimum can’t be decided by 

the sentencing judge, but must be decided by a jury beyond a reasonable 

doubt. Id. 

 Mr. Glasper claims that he was convicted of use and/or carrying of a 

firearm in relation to a crime of violence, but the government alleged or inferred 

that he brandished the firearm. Count 8 of the superseding indictment, a 

violation of § 924(c), didn’t include a brandishing element. The court didn’t 

make an explicit finding that Mr. Glasper brandished the weapon, but the 

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finding is implied since § 924(c) imposes a mandatory minimum seven year or 

84-month term of imprisonment if the firearm was brandished, and the court 

sentenced Mr. Glasper to 84 months’ imprisonment for the violation of § 924(c). 

Following Alleyne, the sentencing judge couldn’t have determined whether Mr. 

Glasper brandished the firearm, a fact that by law increased the penalty for the 

crime. But Mr. Glasper entered into a binding agreement with the government 

regarding the term of his imprisonment. Paragraph 9(j) of the initial plea 

agreement stated: 

[T]he government and defendant Glasper agree to a binding 

sentence (total, on both counts) of 84 months imprisonment 

followed by three years supervised release. That is, if the court 

accepts this plea agreement, the defendant will be sentenced to 84 

months imprisonment on Count 8 if found to have “brandished” 

the firearm and no imprisonment on Count 2 OR 60 months 

imprisonment on Count 8 and 24 months imprisonment on Count 

2 – and in any case followed by three years supervised release 

(concurrent) on each count. 

The amended plea agreement replaced paragraph 9(j) with the following: 

[T]he government and defendant Glasper agree to a binding 

sentence (total, on both counts) of 141 months imprisonment 

followed by three years supervised release. 

The question of whether Mr. Glasper brandished the firearm existed in the 

initial plea agreement, but had disappeared in the amended version. Under the 

initial agreement, Mr. Glasper was to be sentenced to 84 months’ 

imprisonment total, regardless of whether he brandished the firearm. The 

months would be allotted depending on the court’s finding regarding whether 

he brandished the firearm, but otherwise the total amount wouldn’t change. 

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Similarly, but without being expressly defined, under the amended agreement, 

Mr. Glasper was to be sentenced to 141 months’ imprisonment total, regardless 

of whether he brandished the firearm. The amended agreement didn’t specify 

the allotment of the months between the counts, but if the court found Mr. 

Glasper didn’t brandish the firearm, his total sentence would still have been 

141 months’ imprisonment. The holding of Alleyne doesn’t benefit Mr. Glasper. 

 Mr. Glasper’s § 2255 motion is untimely – and even if timely, wouldn’t 

entitle him to the relief he seeks – and Mr. Glasper’s First Amendment claim 

has no merit. The court DENIES his motion pursuant to 28 U.S.C. § 2255 and 

the First Amendment (Doc. No. 136 in 3:07-cr-111). 

 SO ORDERED. 

 ENTERED: January 31, 2014 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court 

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