Duke v. Krueger

Filing 15

AMENDED ORDER & OPINION entered by Judge Joe Billy McDade on 9/29/2017. For the reasons stated above, Petitioner's Petition for Writ of Habeas CorpusPursuant to 28 U.S.C. § 2241 (Doc. 1 ) is GRANTED. IT IS HEREBY ORDERED:1) Petitioner' ;s convictions for violating Counts 28, 29, and 30, using orcarrying a firearm during and in relation to a drug trafficking offense all inviolation of 18 U.S.C. § 924(c)(1) in United States v. Duke, No. 4:89-cr-00094-DSD-1 are VACATED; 2) The Cl erk is DIRECTED to send copies of this Opinion and Order to Petitioner; Respondent; the Clerk of the United States District Court for the District of Minnesota, and the United States Attorney for the District of Minnesota; 3) The matter is transferred to the United States District Court for the District of Minnesota for resentencing in light of United States v. Jackson, 103 F.3d 561, 56970 (7th Cir. 1996). SEE FULL WRITTEN ORDER & OPINION. (JS, ilcd)

E-FILED

Friday, 29 September, 2017 01:11:28 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

RALPH CHAVOUS DUKE,
Petitioner,
v.
PAUL THOMPSON, Acting Warden of
FCI PEKIN,
Respondent.

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Case No. 17-cv-1024

AMENDED O R D E R & O P I N I O N
This matter is before the Court on the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) filed by Ralph Chavous Duke. The parties have
submitted memoranda of law in support of and in opposition to the Petition. For the
reasons stated below, the Court grants the Petition (Doc. 1).
BACKGROUND
Petitioner is currently incarcerated at the Federal Correctional Institution in
Pekin, Illinois. In 1989, Petitioner was convicted by a Minnesota federal jury of 1)
participating in a continuing criminal enterprise to possess and distribute cocaine in
violation of 21 U.S.C. § 848 (1988) (count 1); 2) aiding and abetting the attempt to
possess with intent to distribute twenty kilograms of cocaine on May 17, 1989, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (1988) and 18 U.S.C. § 2 (1988) (count 2); 3)
other instances of aiding and abetting the possession with intent to distribute smaller
quantities of cocaine on various dates in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (counts 4, 5, 6, 7, 8); 4) three counts of using or carrying a firearm during

and in relation to a drug trafficking offense all in violation of 18 U.S.C. § 924(c)(1)
(1988) (counts 28, 29, 30); and 5) conspiracy from 1984 to May 18, 1989, to possess
with intent to distribute cocaine in violation of 21 U.S.C. § 846 (count 32). United
States v. Duke, 940 F.2d 1113, 1115 (8th Cir. 1991). Petitioner initially received
separate but concurrent life sentences on counts 1, 2, and 32, but the Eighth Circuit
remanded his case and ordered that either his conviction on count 1 or count 32 be
vacated because the convictions for both continuing criminal enterprise and
conspiracy violated the Double Jeopardy clause of the Fifth Amendment. His
conviction and sentence were affirmed by the Eighth Circuit in all other respects. In
addition to the sentences in relation to counts 1, 2 and 32, Petitioner was also
sentenced to concurrent forty-year sentences on each of counts 4-8. 940 F.2d at 1115.
Moreover, Petitioner was also sentenced to mandatory consecutive sentences of thirty
years, five years, and five years for counts 28, 29, and 30, respectively, totaling forty
consecutive years. Id. Just last year, a Minnesota district court granted a motion to
reduce Petitioner’s sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 782
to the Sentencing Guidelines and reduced Petitioner’s sentence of life plus 40 years
consecutive to 365 months plus 40 years consecutive. United States v. Duke, No. 4:89cr-00094-DSD-1, Doc. 264 (D. Minn. July 27, 2016).
To recap: Petitioner is serving concurrent terms of imprisonment of 365 and
forty months, with an additional forty consecutive months to begin running when his
365 month term of imprisonment ends. It is clear to see why Petitioner is eager to
shed himself of the 924(c) convictions if he can. With the current rules mandating
federal prisoners serve out at least eighty-five percent of their incarceration terms,
2

Petitioner may only have had to serve out 310 months, which is roughly 26 years.
Since he has been incarcerated since 1989, it is possible his 365 month term of
imprisonment has already run out. Thus, if his 924(c) convictions are indeed infirm
and vacated, Petitioner may be entitled to immediate release. Petitioner should be
aware that the Court has not reviewed his actual Bureau of Prison records nor his
presentence investigation report and thus the foregoing discussion was merely
intended to give context as to the import of the instant petition from the Petitioner’s
perspective; not as any sort of guarantee that he is indeed entitled to immediate
release if he is successful in this action.
Petitioner’s procedural history is complex. In the period between his direct
appeal and the instant § 2241 petition, Petitioner sought collateral relief multiple
times. In 1993, Petitioner filed an unsuccessful motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 arguing that the Government used perjured
testimony to secure his conviction. See United States v. Duke, 50 F.3d 571, 573 (8th
Cir. 1995). Two years later, the United States Supreme Court held in Bailey v. United
States, 516 U.S. 137 (1995), that the term “use” in 18 U.S.C. § 924(c) does not include
mere possession but “require[d] evidence sufficient to show an active employment of
the firearm by the defendant.” Id. at 142-43, see also In re Davenport, 147 F.3d 605,
607 (7th Cir. 1998).
Petitioner then filed a second § 2255 motion with the district court, arguing
that his § 924(c) convictions should be vacated because of Bailey. See Duke v. United
States, No. 4:96-cv-00845-DSD (D. Minn.). The district court found that the
gatekeeping mechanism of the Anti-Terrorism and Effective Death Penalty Act of
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1996 was applicable to his second § 2255 motion and dismissed it without prejudice
to his ability to seek the necessary approval from the Eighth Circuit Court of Appeals
before seeking such relief in the district court. (Doc. 7-1 at 90-93); see 28 U.S.C. §
2255(h) (“A second or successive motion must be certified as provided in section 2244
by a panel of the appropriate court of appeals....”). Thereafter, Petitioner
unsuccessfully sought such approval from the Eighth Circuit several times: in 1997,
2001, 2008, and 2012.
Petitioner now brings a petition for habeas relief under 28 U.S.C. § 2241. In it
he argues his three convictions under 18 U.S.C. § 924(c) in counts 28, 29, and 30 must
be vacated based on the Supreme Court’s decision in Bailey. The Government agrees
with Petitioner as to counts 29 and 30 but not as to count 28. Count 28 of the operative
Indictment provided:
On or about the 18th day of May, 1989, in the State and District of
Minnesota, the defendant, RALPH CHAVOUS DUKE, a/k/a PLOOKIE,
a/k/a PLUKEY, did knowingly and unlawfully use and carry a firearm,
namely a .22 caliber pistol with silencer attached, during and in relation
to the drug trafficking crimes set forth in Counts l and 32 of this
indictment, felonies subject to prosecution in a court of the United
States, all in violation of Title 18, United States Code, Section 924 (c)
(1).
(Doc. 7-1 at 15). The relevant jury instructions provided as follows:
The firearms count charges that the defendants used and carried
firearms. It is sufficient if the United States proves either that firearms
were used or carried; both do not have to be proved.
***
To meet its burden of proving that a firearm was used during or in
relation to a drug trafficking crime, the United States does not have to
show that the defendant actually possessed either the firearms or the
drugs. Proof of constructive possession may be sufficient.
Proof that a person has in his house, apartment, or office a quantity of
narcotics for distribution and a firearm may be sufficient to show beyond
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a reasonable doubt that a firearm is being used during or in relation to
a drug trafficking crime. Proof of the presence of a firearm for purposes
of protecting the narcotics, or cash proceeds from sales of narcotics at a
place where narcotics are distributed, may be sufficient to show beyond
a reasonable doubt that the firearm is being used during or in relation
to a drug trafficking crime.
You are the sole judges of the facts, and it is up to you to determine what
evidence to accept and what weight to give it.
(Doc. 7-1 at 47-48). Finally, the Eighth Circuit wrote the following while affirming
Petitioner’s 924(c) convictions on direct appeal under a pre-Bailey understanding of
the term “use”:
A weapon need not be actually brandished or discharged to be used,
however, so long as “it was an integral part of [the defendant’s] criminal
undertaking and its availability increased the likelihood that the
criminal undertaking would succeed.” United States v. Matra, 841 F.2d
837, 843 (8th Cir. 1988). In drug-trafficking crimes, firearms are often
used for protection or intimidation; their “presence and availability in
light of the evident need demonstrates the use.” United States v.
LaGuardia, 774 F.2d 317, 321 (8th Cir. 1985). Accord United States v.
Michaels, 911 F.2d 131, 132 (8th Cir. 1990) (“[I]f a gun [was] available
to the defendant, and if the gun was an integral part of the crime and
increased the likelihood of its success, then it was used during and in
relation to the crime.”), cert. denied, 498 U.S. 1094, 111 S.Ct. 981, 112
L.Ed.2d 1066 (1991).
***
In the spring of 1988, [Petitioner] called his nephew, Joseph Ballard,
and told him to pick up the pistol from Marcel Duke. Ballard delivered
the gun to [Petitioner] at the Delano house, where [Petitioner] “loaded
it, and showed it to his friend Marvin [McCaleb], and went out in the
yard, and shot it a few times.” Trial Transcript vol. 7, at 88. During the
six to eight weeks when the gun was kept at the Delano house,
[Petitioner] also fired it in the presence of his Columbian source. Id. vol.
7, at 206-07. At some point, [Petitioner] had Ballard take the gun to the
storage unit where it was seized on May 18, 1989.
***

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We think that the two occasions when [Petitioner] fired the gun in the
presence of others constitute actual use within section 924(c); the public
act of firing a pistol with a silencer can only be an advertisement of its
availability if needed-clearly the sort of intimidation contemplated by
our cases. See, e.g., LaGuardia, 774 F.2d at 321. Cf. United States v.
Evans, 888 F.2d 891, 896 (D.C.Cir.1989) (although actual use not needed
under section 924(c), act of pointing gun at government informant and
co-defendant on two different occasions “suggests that the guns were, in
fact, used to protect the drug stash”), cert. denied, 494 U.S. 1019, 110
S.Ct. 1325, 108 L.Ed.2d 500 (1990).
940 F.2d at 1119. The Government believes the Eighth Circuit’s holding establishes
that Petitioner cannot satisfy the third requirement under Davenport, which is
demonstration of “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). The Government contends that since there was evidence the gun
with the silencer was fired on two separate occasions, the use and carry conviction
for that gun is valid, thus no miscarriage of justice occurred.
LEGAL STANDARDS
Federal prisoners like Petitioner who wish to collaterally attack their
convictions or sentences ordinarily must generally do so under 28 U.S.C. § 2255.
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). They may petition under 28 U.S.C.
§ 2241 only in the rare circumstance in which 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”). The mere fact that Petitioner’s
claim would be a second or successive § 2255 motion does not render § 2255
inadequate or ineffective. See In re Davenport, 147 F.3d at 609-10. Moreover, the mere
fact that a movant lost on his § 2255 motion does not render § 2255 an inadequate or
ineffective remedy to challenge the legality of his sentence.
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DISCUSSION
I.

Davenport Requirements Are Satisfied As To Counts 29 And 30.
A federal prisoner must meet three criteria in order to invoke the Savings

Clause of 28 U.S.C. § 2255(e) and obtain collateral relief pursuant to 28 U.S.C. § 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, 719 F.3d 583, 586 (7th Cir. 2013) (citations omitted) (internal quotation
marks omitted).
Bailey, 516 U.S. 137, is a case of statutory interpretation that has been held to
apply retroactively. See In re Davenport, 147 F.3d at 610 citing Bousley v. United
States, 523 U.S. 614 (1998). Petitioner was previously unable to make use of Bailey
because the case had not been decided until well after his conviction, his direct
appeal, and his first post-conviction 2255 motion. Moreover, even after Bailey was
decided the Petitioner could not make use of the decision in a successive 2255 motion
because Bailey is a case of statutory interpretation and not a “new rule of
constitutional law” as required by 28 U.S.C. § 2255(h).
Finally, the Government’s citation of the third prong of the Davenport
requirements—“that the error is ‘grave enough ... to be deemed a miscarriage of
justice corrigible therefore in a habeas corpus proceeding,’ such as one resulting in ‘a
conviction for a crime of which he was innocent’”—leads the Court to conclude that
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the Government is conceding the Petitioner’s 924(c) convictions in relation to counts
29 and 30, are such grave errors capable of correction upon collateral review despite
the fact that the Government did not specifically explain why.
In Davenport, the court characterized appellant Nichols’ 924(c) conviction
based on the pre-Bailey expansive definition of the term “use” that encompassed mere
possession as being tantamount to being convicted of a non-existent crime, 147 F.3d
at 610, and as a “fundamental defect.” Id. at 611. Based upon that characterization,
to the extent that Petitioner was convicted for merely possessing weapons and not
convicted of actually actively using or carrying them, it is clear that he too was
convicted of conduct that was not criminalized under the 1991 version of 18 U.S.C. §
924(c). 1 For these reasons, Petitioner, a federal prisoner, may make use of a § 2241
petition in lieu of a successive § 2255 motion in this case.
Petitioner’s convictions for counts 29 and 30 of the Indictment must be
overturned because of Bailey. Petitioner did not actively employ the two guns at issue
in these two convictions. Both guns were merely present in the home were Petitioner
resided and ran much of his drug empire but neither gun was actively employed for
any purpose in relation to the ongoing drug conspiracy. The Eighth Circuit held that

At the time of Petitioner’s conviction in this case, § 924(c) provided that
“[w]hoever, during and in relation to any crime of violence or drug trafficking
crime. . . for which he may be prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime, be sentenced to imprisonment for five years, and
if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic
assault weapon, to imprisonment for ten years, and if the firearm is a machinegun,
or a destructive device, or is equipped with a firearm silencer or firearm muffler, to
imprisonment for thirty years.” 18 U.S.C. § 924(c)(1) (1991).
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Petitioner was properly convicted of using these two guns because the law at that
time was that “[i]n drug-trafficking crimes, firearms are often used for protection or
intimidation; their ‘presence and availability in light of the evident need
demonstrates the use.’ United States v. LaGuardia, 774 F.2d 317, 321 (8th Cir.
1985).” Duke, 940 F.2d at 1118. That line of thinking was expressly rejected by Bailey,
516 U.S. at 149-150. Because Petitioner did not actively employ either gun in counts
29 or 30, his convictions on those counts cannot stand and are hereby vacated.
II.

Petitioner’s Conviction For The Gun With The Silencer, Count 28, Was
Also A Miscarriage Of Justice And Should Be Vacated.
The Government contends that Count 28 remains valid because there was

evidence presented to the jury that proved Petitioner actively employed and carried
the firearm under the post-Bailey interpretation of the statute. Swedzinski v. United
States, 160 F.3d 498, 501 (8th Cir. 1998). Petitioner responds that the sufficiency of
the evidence is not the correct focus of the inquiry, but instead, under United States
v. Robinson, 96 F.3d 246, 250 (7th Cir. 1996), where the jury instructions given
allowed the jury to convict the defendant of using a firearm without evidence that he
actively employed it and evidence indicating mere passive possession was presented
to the jury, the conviction must be reversed and the cause remanded for a new trial,
since it cannot be determined whether the jury convicted on the proper basis or the
improper basis. Robinson was a case on direct appeal but its rule has been utilized
and applied on collateral review. See, e.g., Nichols v. United States, 215 F.3d 1330,
2000 WL 689186 (7th Cir. 2000). Moreover, in Woodruff v. United States, 131 F.3d

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1238, the Seventh Circuit expressly reaffirmed that the rule of Bailey must also be
applied to cases on direct appeal and collateral review. Id. at 1242.
In Swedzinski, the court discussed the sufficiency of the evidence argument in
the context of deciding whether the petitioner could establish cause and prejudice for
his procedural default of the Bailey issue. 160 F.3d at 501. In this judicial circuit, a
petitioner convicted of a 924(c) violation before Bailey was decided need not overcome
procedural default to mount a Bailey challenge on collateral review. See Stanback v,
United States, 113 F.3d 651, 654-56. And since this is not a case where the petitioner’s
reliance on 28 U.S.C. § 2241 is conditioned upon a change in the law caused by a
circuit split in substantive law between the circuit of conviction and circuit of
incarceration, the Court sees no impediment to applying Seventh Circuit law to this
case.
Here, the government concedes that the jury was improperly instructed with
the pre-Bailey understanding of “use” of a firearm. The improper instruction provided
as follows:
To meet its burden of proving that a firearm was used during or in
relation to a drug trafficking crime, the United States does not have to
show that the defendant actually possessed either the firearms or the
drugs. Proof of constructive possession may be sufficient.
Proof that a person has in his house, apartment, or office a quantity of
narcotics for distribution and a firearm may be sufficient to show beyond
a reasonable doubt that a firearm is being used during or in relation to
a drug trafficking crime. Proof of the presence of a firearm for purposes
of protecting the narcotics, or cash proceeds from sales of narcotics at a
place where narcotics are distributed, may be sufficient to show beyond
a reasonable doubt that the firearm is being used during or in relation
to a drug trafficking crime.
You are the sole judges of the facts, and it is up to you to determine what
evidence to accept and what weight to give it.
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(Doc. 7-1 at 46). In Nichols, the Seventh Circuit applied Robinson and stated in
instances where “some of the evidence presented could qualify as either activeemployment ‘use’ or as ‘carry,’ but other firearms evidence presented exemplifies only
possession or some other type of now-defunct, inactive ‘use,’ we will reverse the
conviction and remand for a new trial, since we cannot be sure whether the jury
convicted on the proper basis or the improper basis.” 215 F.3d 1330, 2000 WL 689186
at *2. The only reason Nichols’ Bailey challenge failed is that there was “no
countervailing evidence indicating passive possession” presented in his case. Id. That
is not the case here.
Here, there was evidence presented to the jury that indicated passive
possession as well as argument inviting the jury to take assurance that it could find
Petitioner guilty on a theory of passive possession as well as a theory of active
possession. For example, the Government argued to the jury the following:
I want to talk a little bit about this silencer.
You may ask, “Well, how can he be using or carrying something when it
is sitting in his bedroom or in his storage locker?” The Judge is going to
tell you what using or carrying means for purposes of this law. It’s a
term of art. And using and carrying extends to having it in a place where
drugs are kept.
Now with this silencer you know that he showed it to two coconspirators.
If you believe Joe Ballard and Marvin McCaleb, he showed it to both of
them. The thing on its fact is intimidating. He used it to control those
two people. He had the other guns at the Delano house to protect his
money – which you know he kept there because he counted it there with
Shawn Regan. He had those guns at Delano to protect the drugs that
came in there. That is what using or carrying means for purpose of this
law.
The gun doesn’t have to be fired, nobody has to be shot with it or
anything like that, but it is still used or carried within the meaning of
the law. It is kind of like having a missile sitting in a silo in North
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Dakota. All right? Nobody is using it at the moment. Nobody is carrying
it around on a truck getting ready to fire it off. But we are still using it.
We have it there. It is in readiness.
(Trial Transcript of Proceedings, No. 4-89-cr-00094, December 20, 1989 attached as
Exhibit A (emphasis added)). Thus, as the transcript shows, the Government offered
evidence and argument of passive possession to satisfy the elements of the use and
carry offense in addition to evidence to support a conclusion that Petitioner actually
actively used the firearm at issue.
Bailey, 516 U.S. at 142-43, held that the term “use” in 18 U.S.C. § 924(c) does
not include mere possession but “require[d] evidence sufficient to show an active
employment of the firearm by the defendant.” See also Davenport, 147 F.3d at 607.
Robinson held that where a jury instruction on “use” was clearly flawed, a § 924(c)(1)
conviction will be reversed and remanded in instances “where some of the evidence
presented could qualify as either active-employment ‘use’ or as ‘carry,’ but other
firearms evidence presented exemplifies only possession or some other type of nowdefunct, inactive ‘use.’” Both Bailey and Robinson have been applied on collateral
review. Petitioner’s conviction for Count 28 fits squarely into the scenario discussed
above. Thus, Seventh Circuit case law is clear that in such instances, a 924(c)
conviction secured in such a way should be reversed and remanded for new trial.
CONCLUSION
For the reasons stated above, Petitioner’s Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is GRANTED.
IT IS HEREBY ORDERED:

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1) Petitioner’s convictions for violating Counts 28, 29, and 30, using or
carrying a firearm during and in relation to a drug trafficking offense all in
violation of 18 U.S.C. § 924(c)(1) in United States v. Duke, No. 4:89-cr00094-DSD-1 are VACATED;
2) The Clerk is DIRECTED to send copies of this Opinion and Order to
Petitioner; Respondent; the Clerk of the United States District Court for
the District of Minnesota, and the United States Attorney for the District
of Minnesota;
3) The matter is transferred to the United States District Court for the
District of Minnesota for resentencing in light of United States v. Jackson,
103 F.3d 561, 569–70 (7th Cir. 1996).
IT IS SO ORDERED.
CASE TERMINATED.
Entered this 19th day of September, 2017.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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Exhibit A