Cooper v. Krueger
Filing
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ORDER & OPINION dismissing 1 Petition for Writ of Habeas Corpus (2254) pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Entered by Judge Joe Billy McDade on 12/8/2015. (RK, ilcd)
E-FILED
Tuesday, 08 December, 2015 01:02:46 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
MARK O. COOPER
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Petitioner,
v.
J. KRUEGER, Warden
Respondent.
Case No. 15-cv-1425
ORDER & OPINION
This matter is before the Court on Petitioner Mark O. Cooper’s Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (Doc. 1). For the reasons
stated below, the Petition is dismissed.
BACKGROUND AND PROCEDURAL HISTORY
Petitioner Mark O. Cooper and two others, while armed, robbed Soto’s
Jewelry store in Rockford, Illinois on August 2, 2007. United States v. Cooper, 360
F. App’x 657, 657-58 (7th Cir. 2012). During the robbery, Petitioner jumped on the
counter and ordered an employee of the store at gunpoint to get on the ground as
one of his cohorts went into a small back room and dragged a second employee
approximately six feet. Id. at 658; United States v. Cooper, No. 07-cr-50058-5 (N.D.
Ill. June 13, 2008). Petitioner and the others left having stolen approximately
$3,000 of merchandise. Cooper, 360 F. App’x at 658.
Petitioner ultimately pleaded guilty to two counts of the indictment: a
robbery count pursuant to 18 U.S.C. § 1951(a) and a count for using a firearm
during a crime of violence pursuant to 18 U.S.C. § 924(c)(1)(A). Id.; United States v.
Cooper, No. 07-cr-50058-5 (N.D. Ill. Sept. 22, 2008). On September 22, 2008, the
trial court sentenced Petitioner to 155 months of imprisonment. United States v.
Cooper, No. 07-cr-50058-5 (N.D. Ill. Sept. 22, 2008). This included 71 months for the
robbery charge, and 84 months to run consecutive to the robbery charge for using a
firearm during a crime of violence. Id. Petitioner is currently incarcerated in the
Federal Correctional Institution in Pekin, Illinois. (Doc. 1 at 1).
The Seventh Circuit Court of Appeals affirmed Petitioner’s sentence. See
United States v. Cooper, 360 F. App’x 657 (7th Cir. 2010). On appeal, Petitioner
argued that the district court improperly calculated his sentencing guideline range
for the robbery count. The district court calculated Petitioner’s final offense level at
level 23. Id. at 659. It began with a base offense level of 20, and then added two
points because the victim sustained bodily injury during the robbery, added four
additional points having concluded that the victim was abducted, and subtracted
three points because Petitioner accepted responsibility. Id. With Petitioner’s
criminal history category of IV, the Guidelines recommended a sentence between 70
and 87 months. Id.
The Seventh Circuit found that the victim was restrained rather than
abducted, and therefore held that the district court erred in calculating Petitioner’s
final offense level of 23. Id. However, the court concluded that this error was
harmless, as Petitioner’s ultimate sentence was within the properly-calculated
guideline range and the district court stated that “he would have given the identical
sentence whether or not he was correct on the abduction versus restraint issue.” Id.
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at 659-60. The court rejected Petitioner’s other argument on appeal as frivolous. Id.
at 660.
On July 30, 2012, Petitioner filed a motion pursuant to 28 U.S.C. § 2255. See
Cooper v. United States, No. 12-cv-50284 (N.D. Ill. Oct. 25, 2012). In it, he asserted
that his 71-month sentence on the robbery conviction was erroneous because the
Court “improperly considered both his criminal history and the fact a victim was
injured.” Id. The district court dismissed the motion as untimely, id., and the
Seventh Circuit declined to issue a Certificate of Appealability. Cooper v. United
States, No. 13-2514 (7th Cir. Oct. 31, 2013).
Petitioner then filed a petition for habeas corpus pursuant to 28 U.S.C. §
2241 in the Southern District of Illinois, when he was incarcerated in the Federal
Correctional Institution at Greenville, Illinois. See Cooper v. Cross, No. 14-cv-00076,
2014 WL 624217 (S.D. Ill. Feb. 28, 2014). In it, Petition argued that the trial court
denied his First Amendment right to access the courts by denying his § 2255 motion
without an evidentiary hearing. Id. at *1. He sought a reinstatement of his § 2255
motion and an evidentiary hearing. Id. The court dismissed the petition with
prejudice. Id. at 3.
This brings us to the current Petition. Although Petitioner purports to
challenge the manner in which his sentence is being carried out, calculated, or
credited by prison authorities, he is actually challenging the sentence imposed by
the district court. (See Doc. 1 at 2). He argues that the district court improperly
sentenced him, (id.), and requests that the court vacate the sentence and resentence
him. (Id. at 6). In a memorandum accompanying his Petition, Petitioner challenges
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the sentence with respect to each of the counts for which he was convicted. First, he
argues that the 84-month consecutive sentence that he is serving pursuant to his
firearm conviction is altogether invalid. (Doc. 2 at 1-2). Second, he argues that the
71-month sentence that he is serving pursuant to his robbery conviction is too long
in light of his offense level and criminal history. (Id. at 2). He requests that he be
resentenced “according to the guidelines of 46 to 57 months imprisonment on [the
robbery conviction], without [the firearm conviction].” (Id.).
DISCUSSION
The Court, in its discretion, applies the Rules Governing Section 2254 Cases
in the United States District Courts to this case. See Rules Governing Section 2254
Cases in the United States District Courts, R 1(b).1 This includes Rule 4, which
requires that the Court “promptly examine” the Petition, and dismiss it if it “plainly
appears . . . that the petitioner is not entitled to relief.” Pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts, the Court
has examined the Petition and concludes that Petitioner’s § 2241 claim is not
cognizable and must be dismissed.
Petitioner is challenging the validity of the sentence imposed by the district
court, and therefore would ordinarily be required to bring his claim as a § 2255
motion rather than a § 2241 petition. See Hill v. Werlinger, 695 F.3d 644, 645 (7th
Cir. 2012) (“28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide federal prisoners with
distinct forms of collateral relief. Section 2255 applies to challenges to the validity
See also Poe v. United States, 468 F.3d 473, 477 n.6 (7th Cir. 2006); Hudson v.
Helman, 948 F. Supp. 810, 811 (C.D. Ill. 1996) (holding Rule 4 takes precedence
over the deadlines in 28 U.S.C. § 2243 and gives court discretion to set deadlines).
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of convictions and sentences, whereas § 2241 applies to challenges to the fact or
duration of confinement.”); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). He
may only petition under 28 U.S.C. § 2241 if the remedy provided under § 2255 “is
inadequate or ineffective to test the legality of his detention.”
See 28 U.S.C. §
2255(e) (which is often referred to as “the Savings Clause”).
In In re Davenport, 147 F.3d 605 (7th Cir. 1998), the Seventh Circuit held
that collateral relief is available to a federal prisoner 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.” Id. at 611. A federal prisoner must meet three criteria in order to invoke
the Savings Clause and obtain collateral relief pursuant to § 2241. First, a prisoner
“must show that he relies on a [new] statutory-interpretation case rather than a
constitutional case;” second, he “must show that he relies on a retroactive decision
that he could not have invoked in his first § 2255 motion;” and third, “[the] sentence
enhancement [must] have been a grave enough error to be deemed a miscarriage of
justice corrigible therefore in a habeas corpus proceeding.” Brown v. Caraway, 719
F.3d 583, 586 (7th Cir. 2013) (citations omitted)(internal quotation marks omitted).2
Petitioner cannot meet the requirements established by Davenport and its
progeny because his claims regarding his sentence do not rely on any new and
retroactive statutory interpretation cases. See id. Petitioner suggests that he has
presented certain new claims that are now available because of “the ‘Johnson’ case.”
The mere fact that Petitioner’s claim would be a second or successive § 2255
motion does not render § 2255 inadequate or ineffective. See Davenport, 147 F.3d at
609-10. Nor does the fact that a previous § 2255 motion was denied. Stirone v.
Markley, 345 F.2d 473, 474 (7th Cir. 1965).
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(Doc. 1 at 8). In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme
Court addressed the constitutionality of one clause in 18 U.S.C. § 924(e), which
imposes a mandatory minimum sentence of fifteen years for individuals who violate
18 U.S.C. § 922(g) and have three or more previous convictions for a violent felony,
a serious drug offense, or both. The statute includes a clause defining those felonies
that “otherwise involve[] conduct that presents a serious potential of physical injury
to another” as violent felonies. 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court held
that this clause is invalid because it is unconstitutionally vague. Johnson, 135 S. Ct.
at 2557.
There are two problems with Petitioner’s reliance on Johnson. First, and
most importantly, this case just does not implicate Johnson. Petitioner was
convicted of violating 18 U.S.C. § 924(c)(1)(A), which is a wholly separate statutory
provision from 18 U.S.C. § 924(e)(2)(B). Section 924(c)(1)(A) establishes mandatory
minimum sentences for “any person who, during and in relation to any crime of
violence . . . for which the person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such crime, possesses a
firearm . . . .” Meanwhile, § 924(e) establishes a mandatory minimum sentence for a
subsection of individuals who have been convicted of violating 18 U.S.C. § 922(g).
Moreover, § 924(c) includes a definition for crime of violence that is distinct from §
924(e)’s definition for violent felony. Compare 18 U.S.C. § 924(c)(3) with id. §
924(e)(2)(B).
As Petitioner pleaded guilty to a crime that is unrelated to the
statutory provision addressed by Johnson, the Johnson case is inapplicable.
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Second, even if Petitioner had a Johnson claim, such a claim must be
addressed by a § 2255 motion rather than a § 2241 petition, as Johnson
“announce[d] a new substantive rule of constitutional law that the Supreme Court
has categorically made retroactive to final convictions.” Price v. United States, 795
F.3d 731, 732 (7th Cir. 2015); see also, Jenkins v. Krueger, No. 15-cv-1307, 2015 WL
4750787, at *2 (C.D. Ill. Aug. 11, 2015)(explaining that § 2241 is unavailable to
petitioners bringing Johnson claims because Johnson claims are constitutional
rather than statutory).
Because Petitioner has failed to show that “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,” the Court concludes
that he is not entitled to proceed under 28 U.S.C. § 2241. Davenport, 147 F.3d at
611.
CONCLUSION
For these reasons, the Court finds Petitioner is not entitled to relief pursuant
to 28 U.S.C. § 2241. Thus, the Petition is DISMISSED pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts. IT IS SO
ORDERED. CASE TERMINATED.
Entered this 8th day of December, 2015.
s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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