Patterson v. Rios
Filing
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ORDER Entered by Judge Michael M. Mihm on 4/14/11. 1 Petition for Writ of Habeas Corpus (2241) is DISMISSED for lack of jurisdiction. (cc:pet)(SM, ilcd)
E-FILED
Friday, 15 April, 2011 08:47:42 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ANDREW PATTERSON,
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Petitioner,
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v.
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RICARDO RIOS, Warden,
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Respondent. )
Case No. 10-1265
ORDER
Now before the Court is Petitioner Andrew Patterson’s (“Patterson”) Petition for Writ of
Habeas Corpus Brought by a Person in Federal Custody pursuant to 28 U.S.C. § 2241. For the
reasons set forth below, the Petition [#1] is DISMISSED.
BACKGROUND
On December 6, 1995, a grand jury in the United States District Court for the Northern
District of Illinois returned a Superseding Indictment in which Patterson was charged with one
count of racketeering conspiracy (Count One), one count of drug trafficking conspiracy (Count
Two), one count of use or carry of a firearm during or in relation to a drug trafficking crime or
crime of violence (Count Three), and two counts of felon in possession of a firearm (Counts Four
and Five). Count Three of the indictment charged:
Beginning in or about October 25, 1991, and continuing through January
28, 1992, at Chicago, in the Northern District of Illinois, Eastern Division,
ANDREW PATTERSON
also know as “Bay-Bay,”
defendant herein, used and carried five firearms, namely:
a Central Arms Company 12-gauge, short-barreled shotgun, serial number 87317;
a Charter Arms .38 caliber handgun, model Undercover, serial number 63224;
a Vesta .380 caliber handgun, serial number 128082;
a Davis Industries .380 caliber handgun, model P380, serial number AP177022;
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a Harrington and Richardson .32 caliber handgun, model 732, serial
number obliterated;
each on a separate occasion and each being during and in relation to the
commission of a drug trafficking crime for which the defendant may be
prosecuted in a court of the United States, that is, a violation of Title 21, United
States Code, Section 846, as more fully set forth in Count Two of this indictment;
In violation of Title 18, United States Code, Section 924(c)(1) and Section
2.
Count Five of the indictment charged:
On or about October 25, 1991, at Chicago, in the Northern District of
Illinois, Eastern Division,
ANDREW PATTERSON,
also know as “Bay-Bay”
defendant herein, having previously been convicted of a crime punishable by
imprisonment for a term exceeding one year, knowingly possessed a firearm,
namely, a Central Arms Company 12-gauge, short-barreled shotgun, serial
number 87317, which had been transported in interstate commerce;
In violation of Title 18, United States Code, Section 922(g)(1) and Section
2.
In January 1996, a jury trial commenced and lasted for almost 20 weeks. At the
conclusion of the trial, Patterson was found guilty on Counts One, Two, Three, and Five. The
jury returned a special verdict in which it stated that one of the firearms Patterson used and
carried during and in relation to the drug trafficking offense was a Central Arms Company 12gauge, short-barreled shotgun, serial number 87317. Patterson was sentenced to life
imprisonment on Counts One and Two, 120 months on Count Three to run consecutively with
the life sentence, and 120 months on Count Five to run concurrently with the life sentence. His
sentence was subsequently reduced to 324 months on Counts One and Two pursuant to 18
U.S.C. § 3582 on January 23, 2009.
Patterson directly appealed his conviction and sentence, challenging the district judge’s
jury-selection process. The Seventh Circuit affirmed his conviction. The Supreme Court
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granted certiorari, vacated the judgment, and remanded the case to the Seventh Circuit in light
of Apprendi v. New Jersey. 530 U.S. 466 (2000). The Seventh Circuit, on remand, once again
affirmed Patterson’s conviction and sentence. On October 1, 2001, the Supreme Court denied
Patterson’s petition for writ of certiorari. Patterson brought a timely motion pursuant to 28
U.S.C. § 2255 in the Northern District of Illinois on September 19, 2002, claiming: 1) there was
no evidence of an agreement between Patterson or any other defendant to carry out a RICO
violation or scheme, 2) he was deprived of his Fifth and Sixth Amendment rights to a valid
indictment, 3) trial counsel committed prejudicial error by failing to object to the prosecution’s
use of illegally obtained phone tapes, and 4) trial counsel failed to object to the jury instructions
on RICO, bribery, and the prosecution’s failure to inform the jury of sentencing reductions as to
other defendants. His § 2255 motion was denied as was a certificate of appealability. He
appealed the denial, and the Seventh Circuit dismissed it. In 2007, Patterson filed a motion for
relief from judgment in his criminal case, arguing that an illegal sentence was imposed on him
on Count Five, and that the judgment against him was otherwise void. The Northern District
construed it as a § 2255 Motion and denied it as untimely. He then proceeded to file a petition
for writ of habeas corpus pursuant to § 2241 in the Central District of Illinois, claiming that the
sentencing court was without jurisdiction to impose a life sentence on Count Five. The court
determined that Patterson’s § 2241 petition was really a § 2255 motion and denied it as untimely.
Most recently, Patterson filed the instant Petition for Writ of Habeas Corpus pursuant to
§2241, arguing: 1) that this Court has jurisdiction to consider his § 2241 petition because he
meets the “savings clause” of § 2255 by demonstrating that § 2255 is neither adequate nor
effective to address his new claims, and 2) that his conviction under § 924(c)(1)(B)(i) violates
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the Fifth and Sixth Amendments because the jury was prohibited from considering all the
elements of the offense charged in Count Three. The Government has filed its Response to
which Patterson replied, and this Order follows.
DISCUSSION
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. § 2241 when a
defendant is challenging the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S.
475, 490, 93 S.Ct. 1827 (1973); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). The
writ of habeas corpus may be granted where the defendant is in custody in violation of the
Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). "Such relief is
obtainable, however, only after a prisoner exhausts administrative remedies." Carnine v. United
States, 974 F.2d 924, 927 (7th Cir. 1992).
In this § 2241 Petition, however, Patterson does not challenge the circumstances of his
confinement. Rather, he attacks the validity of his sentence and asks this Court to vacate his
sentence and conviction on Counts Three and Five. Accordingly, this Petition involves a
collateral attack on Patterson’s sentence, which would traditionally be brought pursuant to 28
U.S.C. § 2255.
However, Patterson has previously pursued § 2255 relief and is now barred from
pursuing further relief under that section unless he first obtains permission from the Court of
Appeals to bring a successive motion or qualifies as one of the few instances in which petitioners
may seek collateral relief under § 2241. Gray-Bey v. United States, 209 F.3d 986, 988-90 (7th
Cir. 2000); In re Davenport, 147 F.3d 605, 610-12 (7th Cir. 1998). Patterson does not indicate,
and the record does not provide that Patterson sought to obtain permission from the Court of
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Appeals to bring a successive motion, thus leaving only the latter option.
In Davenport, the Seventh Circuit held that a federal prisoner should be permitted to seek
collateral relief under § 2241 “only if he had no reasonable opportunity to obtain earlier judicial
correction of a fundamental defect in his conviction or sentence because the law changed after
his first 2255 motion.” 147 F.3d at 611. To be allowed to proceed, three additional conditions
must also be met: (1) the change of law has to have been made retroactive by the Supreme Court;
(2) it must be a change that eludes the permission in section 2255 for successive motions; and (3)
“change in law” is not to be equated to a difference between the law in the circuit in which the
prisoner was sentenced and the law in the circuit in which he is incarcerated. Id. at 611-12. The
“savings clause” of § 2255 that Patterson relies upon provides that an application for writ of
habeas corpus will not be entertained by a prisoner who has already been denied relief by the
sentencing court, unless § 2255 is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e). That requires that he satisfy the conditions set forth in Davenport, and that
the legal theory he advances supports a non-frivolous claim of actual innocence. Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003).
Patterson argues that the Court has jurisdiction to consider his § 2241 habeas petition
because he seeks to challenge his 1996 conviction based upon the recent United States Supreme
Court case of United States v. O’Brien. 130 S.Ct. 2169 (2010). He contends that O’Brien’s
holding that the type of firearm is an element of the offense under § 924(c) that must be proven
to the jury beyond a reasonable doubt is a change in the law which allows this Court to consider
his habeas petition under Davenport. He further states that because he is also claiming actual
innocence, he has made the requisite showing that § 2255 is inadequate and ineffective to present
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the claims he now raises in his § 2241 petition. The Government argues that Patterson cannot
satisfy the requirements of Davenport, nor does his legal theory support a non-frivolous claim of
actual innocence.
In O’Brien, the Supreme Court considered whether the fact that the firearm in that case
was a machinegun was an element to be proved to the jury beyond a reasonable doubt, or a
sentencing factor to be proved to the judge at sentencing under 18 U.S.C. § 924(c). 130 S.Ct. at
2172. The Court discussed its previous holding in Castillo v. United States, in which it
determined that the firearm type was an element of the offense to be proved to the jury under a
previous version of § 924. Castillo, 530 U.S. 120, 131 (2000). The O’Brien court ultimately
held that the analysis and holding of Castillo controlled the case, so the machinegun provision of
§ 924(c)(1)(B)(ii) was an element of the offense. O’Brien, 130 S.Ct. at 2180. The O’Brien
Court did not state that that case was retroactive, nor can this Court find any cases in which it
has been applied retroactively. Such a fact is fatal to Patterson’s claim that this Court has
jurisdiction to consider the merits of his § 2241 petition under Davenport.
Even if O’Brien did apply retroactively to Patterson’s criminal proceedings, the Northern
District of Illinois applied § 924(c) in accordance with the O’Brien Court’s holding. Count
Three of the indictment charged Patterson with using and carrying five firearms, including a
Central Arms Company 12-gauge, short-barreled shotgun. Furthermore, the jury filled in a
special verdict form in which they indicated their conclusion that Patterson “used and carried
during and in relation to the drug trafficking crime charged in Count Two . . .” all five of the
previously listed firearms. Contrary to what Patterson contends, the indictment and jury
instructions properly set for the specific elements, including the firearm type, of the offense he
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was charged with and convicted of in Count Three. It was clearly the jury, at the trial, that
considered firearm type as an element of the offense with which Patterson was charged in Count
Three.
The Government next argues that Patterson’s legal theory does not support a nonfrivolous claim of actual innocence because even if Patterson admitted to everything charged in
Count Three of his Superseding Indictment, it would still be a crime under § 924(c)(1). See
Kramer, 347 F.3d at 218 (explaining previous cases in which actual innocence was found where
the prisoners “could admit everything charged in their indictment, but the conduct no longer
amounted to a crime under the statutes (as correctly understood)”). In his Reply Brief, Patterson
strenuously argues that he clearly asserts a claim of actual innocence, given O’Brien’s holding
that firearm type is an element under § 924(c)(1)(B)(i) and the Government’s failure to prove to
the jury that Patterson possessed knowledge of the proscribed features of the shotgun he was
determined to have used. Patterson states that it “logically follows that [§ 924(c)(1)(B)(i)] also
has a mens rea requirment [sic] that must be satisfied in assigning guilt,” as a result of the
O’Brien holding. Petitioner’s Reply Brief at 3. Nevertheless, O’Brien only went so far as to say
that the machinegun provision in § 924(c)(1)(B)(ii) was an element of an offense. 130 S.Ct. at
2180. The O’Brien court did not address the issue of whether the government would have to
additionally prove that the defendant knew the firearm was in fact a machinegun. Ultimately,
Patterson’s reliance upon O’Brien in order to establish his actual innocence fails where he
cannot overcome that fact that a jury found him guilty of all the required elements under §
924(c)(1)(B)(i).
Finally, the Government contends that Patterson cannot invoke the savings clause of §
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2255 to proceed under § 2241 because he does not rely on a change in the law that postdates his
first § 2255 motion. See Kramer, 347 F.3d at 217 (explaining that to proceed with a collateral
attack under § 2241, the petitioner must first show that the legal theory he advances relies on a
change in the law that postdates his first § 2255 motion, in addition to showing that it eludes
permission in § 2255 for successive motions). Indeed, the Castillo court had determined in 2000
that the analogous machinegun provision in a previous version of § 924(c)(1) was an element of
the offense to be proved to the jury. 530 U.S. at 131. The previous, 1988 version of § 924(c)(1)
was actually the version under which Patterson was convicted. Patterson’s argument that a mens
rea requirement must be satisfied if the firearm type is an element under § 924(c)(1), was
available at the time Castillo was decided. Because Patterson filed his first § 2255 motion in
September of 2002, his current arguments were already available under Castillo. Thus, his
failure to include those arguments in his first § 2255 motion means he cannot make the required
showing that the legal theory he advances relies upon a change in law that postdates his first §
2255 motion and so he cannot proceed under § 2241.1
Though it is far from clear, it appears that Patterson’s contention that his convictions and
sentences on Counts Three and Five must be vacated is based upon the same set of arguments.
The Government takes the position that Patterson’s argument regarding Count Five is
undeveloped and without merit, and that the O’Brien court did not address, let alone announce
any change in the law with respect to § 922(g)(1) (the statute pursuant to which Patterson was
charged and found guilty of in Count Five). Just as Patterson’s arguments fail to establish that §
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In his Reply, Patterson argues that O’Brien and its rule was previously unavailable to
him. He misses the point that O’Brien reaffirmed what had already been set out in Castillo, a
Supreme Court case already available in 2002 at the time Patterson filed his first § 2255 motion.
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2255 was inadequate or ineffective to test the legality of his detention under Count Three as
discussed above, those arguments fail to establish § 2255's inadequacy or ineffectiveness to test
the legality of his detention under Count Five of his Superseding Indictment. Accordingly,
Patterson’s § 2241 petition is dismissed for lack of jurisdiction.
CONCLUSION
For the reasons set forth above, Petitioner Andrew Patterson’s Petition for Writ of
Habeas Corpus Brought by a Person in Federal Custody pursuant to 28 U.S.C. § 2241 [#1] is
DISMISSED for lack or jurisdiction.
ENTERED this 14th day of April, 2011.
s/ Michael M. Mihm
Michael M. Mihm
United States District Judge
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