Cox v. Krueger

Filing 16

ORDER & OPINION entered by Chief Judge James E. Shadid on 10/19/2017. IT IS ORDERED: (1) Cox's Petition 1 for writ of habeas corpus is GRANTED; (2) Cox's enhanced sentence under the Armed Career Criminal Act imposed by the Western Distric t of Missouri in Case No. 89-00196-01-CR-W-GAF is VACATED; (3) The Respondent is DIRECTED to deliver Cox to the United States District Court for the Western District of Missouri for resentencing; (4) The Clerk is DIRECTED to enter final judgment in f avor of Cox; and (5) The Clerk is DIRECTED to send copies of this Order to the United States District Court for the Western District of Missouri and the Clerk thereof for filing in No. 89-00196-01-CR-W-GAF. (6) This matter is now terminated. (SEE FULL WRITTEN ORDER & OPINION)(JRK, ilcd)

E-FILED

Thursday, 19 October, 2017 09:15:25 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
EDDIE DAVID COX,
Petitioner,
v.
JEFFREY KRUEGER, Warden,
Respondent.

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Case No. 17-1099

ORDER AND OPINION
Now before the Court is Eddie David Cox’s Petition [1] for writ of habeas corpus. For the
reasons set forth below, Cox’s Petition [1] is GRANTED.
BACKGROUND
Petitioner Cox is an incarcerated octogenarian currently serving concurrent life sentences
at the Federal Correctional Institution in Pekin, Illinois. Cox is required to seek permission from
the Chief Judge of this District before filing any future causes of action because of his “extensive
criminal history and equally extensive litigation history.” See Cox v. Rios, No. 12-1331 (C.D. Ill.
May 2, 2013). Petitioner’s counsel received such permission and filed the instant Petition (Doc.
1) on March 2, 2017. The Government has filed a Response (Doc. 10), to which Cox has filed a
Reply (Doc. 13). Unless otherwise indicated, the following facts are culled from these briefs.
A. Cox’s Criminal History
In November 1989, an indictment was returned in the Western District of Missouri
charging Eddie David Cox with conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846
(Count One); impersonating an officer acting under the authority of the United States, in
violation of 18 U.S.C. § 912 (Counts Two and Twelve); possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Three); Hobbs Act robbery, in violation of
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18 U.S.C. § 1951 (Counts Four and Seven); felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) and 924(e)(1) (Counts Five and Eight); and impersonating a federal employee
making an arrest or search, in violation of 18 U.S.C. § 913 (Counts Six, Nine, Ten, and Eleven).
Petition, Doc. 1, at 2; Response, Doc. 10, at 1–2; Presentence Report, Doc. 12. Following a jury
trial, Cox was convicted on all twelve counts. Doc. 12, ¶ 3. Cox’s Presentence Report revealed
the following prior convictions:
1. April 15, 1960 convictions in Geary County, Kansas, for kidnapping and
felonious assault, Cox v. Crouse, 376 F.2d 824 (10th Cir. 1967);
2. An August 21, 1970 conviction in the District of Kansas for bank robbery, in
violation of 18 U.S.C. § 2113(a), United States v. Cox, 449 F.2d 679 (10th Cir.
1971); and
3. A February 22, 1971 conviction in the Western District of Missouri for
conspiracy to violate narcotics laws, United States v. Cox, 462 F.2d 1293 (8th Cir.
1972).
PSR ¶¶ 47, 51, 52.
The district court adopted the PSR and found that Cox qualified for a sentence
enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based on Counts Five
and Eight, and imposed concurrent sentences of life imprisonment on the conspiracy and
firearms counts, 30 years on the possession with intent to distribute count, 20 years each on the
Hobbs Act robbery counts, and three years each on the impersonation counts. On appeal, Cox
challenged the validity of the search of his vehicle, the sufficiency of the evidence supporting his
conviction, the nondisclosure of a witness cooperation agreement, and the district court’s
imposition of a $22,000 fine. The Eight Circuit reversed his conviction on the conspiracy offense
and vacated the accompanying fine, but affirmed the remaining convictions and sentences.
United States v. Cox, 942 F.2d 1282, 1284 (8th Cir. 1991).

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Cox then filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255.
Among the arguments raised therein, Cox claimed that his counsel was ineffective for failing to
argue that his kidnapping conviction should not have counted because he received a state
discharge of the conviction. The district court resentenced Cox on Count Three to a term of 210
months but denied the balance of Cox’s motion. On appeal, the Eighth Circuit affirmed. Cox v.
United States, 210 F.3d 378 (8th Cir. 2000). After the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2251 (2015), Cox sought leave from the Eight Circuit to file a second or
successive § 2255 motion. The Eighth Circuit denied authorization without explanation. United
States v. Cox, No. 16-2029 (8th Cir. 2016).
B. Cox’s Instant Petition
Without the application of the ACCA enhancement, the statutory maximum sentence for
Cox’s two felon in possession of a firearm convictions would have been a 10-year term of
imprisonment, rather than the life sentence he received. 18 U.S.C. §§ 922(g)(1), 924(a)(2). The
sentencing court determined that Cox was an Armed Career Criminal based on four prior
convictions discussed above. Cox now argues that, following Johnson, he no longer qualifies as
an Armed Career Criminal.
First, Cox argues that Johnson invalidated the use of his kidnapping conviction as a
qualifying offense. See, e.g., United States v. Jenkins, 849 F.3d 390, 392 (7th Cir. 2017), reh'g
denied (Apr. 20, 2017), petition for cert. docketed, 137 S. Ct. 2280 (2017) (holding that federal
kidnapping under 18 U.S.C. § 1201 does not qualify as a crime of violence under § 924(c)).
Second, Cox argues that his 1971 conviction for conspiracy to conceal heroin predates the
Controlled Substances Act (“CSA”). Because the ACCA defines “serious drug offense” as an
offense under the Controlled Substances Act, Cox argues that his pre-CSA drug conviction does

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not qualify as a “serious drug offense” under the ACCA. See 18 U.S.C. § 924(e)(2)(A)(i).
Without the kidnapping and pre-CSA convictions, Cox no longer qualifies for an enhanced
sentence under the ACCA. Doc. 1.
Second, Cox argues that he is entitled to proceed under § 2241 because of a structural
problem with § 2255 preventing him from seeking relief to which he is entitled. Doc. 1, at 2
(citing Poe v. LaRiva, 834 F.3d 770, 772 (7th Cir. 2016)). Cox argues that § 2255 is inadequate or
ineffective because although Johnson invalidates one of his prior convictions, he could not
indirectly use a Johnson based second or successive § 2255 motion to challenge his pre-CSA
prior conviction. Doc. 1, at 7. And because Cox’s Armed Career Criminal status was based on
four prior offenses, any challenge to his pre-CSA prior conviction would have been pointless
because he had three other priors that, at the time, supported application of the ACCA. Id. at 8.
C. The Government’s Response
The Government’s Response does not challenge Petitioner’s claim that his kidnapping
and pre-CSA convictions are not qualifying predicates under the ACCA, but nevertheless argues
that Cox is not entitled to relief under § 2241 because Cox procedurally defaulted on his claim
that his narcotics conviction was an improper predicate. Doc. 10, at 9. According to the
Government, it was Cox’s own failure to raise his claim regarding his narcotics conviction earlier
that created the inadequacy in the successive § 2255 authorization process. Id. The Government
further argues that Cox was not precluded from raising his argument regarding his narcotics
conviction earlier because “[t]he definition of ‘serious drug offense’ as found in 18 U.S.C. §
924(e)(2)(A)(i) has not materially changed since Cox’s conviction.” Id. at 10.
The Government also argues that because Cox—in his pro se filings—treated his 1960
convictions for kidnapping and felonious assault as one conviction until recently, “it is

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disingenuous to now argue that he did not challenge the narcotics conviction because it would
have been harmless.” Id. at 10–11.
Therefore, Cox had a colorable argument that his two 1960 convictions for
kidnapping and felonious assault should have been treated as one. After all, the
convictions arose from an episode where Cox kidnapped a police officer at gun
point and subsequently shot the officer in the right arm and stile the officer’s riot
gun from the squad car. Cox v. Crouse, 376 F.2d at 825. In sum, Cox could have
argued that his kidnapping and felonious assault convictions counted as one
predicate conviction and, in fact, Cox actually believed that to be true as
evidenced by the text of his own filings. Those facts support the notion that Cox
could have and should have earlier raised his argument regarding his narcotics
conviction.
Doc. 10, at 12. Finally, the Government asserts that Cox cannot show cause and prejudice
required to excuse his procedural default. According to the Government, “Cox’s claim was never
foreclosed by circuit precedent; instead, he and his earlier counsel merely missed it.” Id. at 13.
However, even if his claim was foreclosed by circuit precedent, “perceived futility alone cannot
constitute cause.” Id. at 12 (citing Smith v. Murray, 477 U.S. 527, 535 (1986)).
LEGAL STANDARD
Generally, federal prisoners who seek to collaterally attack their conviction or sentence
must proceed by way of motion under 28 U.S.C. § 2255, the so-called “federal prisoner’s
substitute for habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368, at *1 (7th Cir.
Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). The exception to this
rule is found in § 2255 itself: a federal prisoner may petition under § 2241 if the remedy under §
2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
Under the “escape hatch” of § 2255(e), “[a] federal prisoner should be permitted to seek habeas
corpus 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.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Thus, the Seventh Circuit has held
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that “alternative relief under § 2241 is available only in limited circumstances: specifically, only
upon showing that (1) the claim relies on a new statutory interpretation case; (2) the petitioner
could not have invoked the decision in his first § 2255 motion and the decision applies
retroactively; and (3) there has been a fundamental defect in the proceedings that is fairly
characterized as a miscarriage of justice.” Montana v. Cross, 829 F.3d 775, 779 (7th Cir.
2016), cert. denied sub nom. Montana v. Werlich, 137 S. Ct. 1813, 197 L. Ed. 2d 758 (2017).
DISCUSSION
Petitioner recognizes that his claim does not meet the first Davenport requirement
because Johnson was a constitutional case rather than one of statutory interpretation. However,
Petitioner argues that the three-part test embodied in Davenport is only one way of establishing a
structural problem with § 2255. This argument appears to enjoy some support from Seventh
Circuit precedent. In Poe v. LaRiva, the court noted that “[o]ne circumstance under which this
court has permitted resort to § 2241 is under the … three-condition test” in Davenport. 834 F.3d
770, 772–73 (7th Cir. 2016) (emphasis added). In Webster v. Daniels, the Seventh Circuit “found
that there is no categorical bar against resort to section 2241 in cases where new evidence would
reveal that the Constitution categorically prohibits a certain penalty.” 784 F.3d 1123, 1139 (7th
Cir. 2015).
Here, Petitioner invites this Court to recognize another type of structural problem with §
2255 and allow § 2241 relief where: (1) a petitioner has more than three predicate offenses; (2) a
new constitutional decision made retroactive by the Supreme Court negates one predicate but
otherwise leaves enough predicates for petitioner to qualify as an armed career criminal; and (3)
one of the remaining predicates has an unrelated infirmity that was not the result of any change
in law and which was not raised previously. Petitioner makes three arguments in support of this

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position. First, he could not obtain authorization to file a second or successive § 2255 motion in
the Eighth Circuit because, although Johnson invalidates one of his prior convictions, he could
not indirectly use Johnson to challenge his pre-CSA prior. The argument advanced by Cox here
was contemplated by the Seventh Circuit in Stanley v. United States, 827 F.3d 562, 565 (7th Cir.
2016). In Stanley, Judge Easterbrook made the following remark:
Perhaps a prisoner could argue that he decided not to press an argument about the
elements clause at sentencing, or on appeal, when the only consequence would
have been to move a conviction from the elements clause to the residual clause.
Then it would be possible to see some relation between Johnson and a contention
that the conviction has been misclassified, for the line of argument could have
been pointless before Johnson but dispositive afterward. But this is not the sort of
argument that Stanley makes.
Stanley, 827 F.3d at 565. This was the argument Cox made before the Eighth Circuit, but that
court, it can be presumed, rejected this argument when it denied authorization to file a second or
successive § 2255 motion.
Second, Petitioner argues that he could not have previously challenged the use of the preCSA offense to enhance his sentence under the ACCA because the sentencing court and the
Eighth Circuit would not have considered the challenge. The sentencing court would not have
been required to make findings about the pre-CSA offense because the ACCA enhancement was
supported by Cox’s kidnapping, felonious assault, and bank robbery priors at the time of
sentencing. In support, Petitioner cites to Federal Rule of Criminal Procedure 32 and United
States v. Brown, 946 F.2d 58, 60 (8th Cir. 1991) for the proposition that that Rule 32 does not
require the court to make unnecessary findings. Likewise, Petitioner argues that the Eighth
Circuit would not have entertained a challenge to the use of the pre-CSA offense on direct appeal
because three other priors qualified Cox for the ACCA enhancement at the time. Third, Petitioner
asserts that he could not have argued that the pre-CSA offense was not a “serious drug offense”

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under the ACCA in his original § 2255 motion because three other priors supported application
of the enhancement at the time. Finally, Petitioner argues that the sentence enhancement is a
grave enough error to be deemed a miscarriage of justice.
The Court agrees that a structural problem with § 2255 prevents Cox from any
“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.” In re Davenport,
147 F.3d 605, 611 (7th Cir. 1998). Petitioner relied on Johnson, which announced a new rule of
constitutional law and was made retroactive to cases on collateral review, to obtain permission
from the Eighth Circuit to file a second or successive § 2255 motion. Under 28 U.S.C. § 2255(h),
permission to file a second or successive motion may be granted if the panel certifies that it
contains (1) newly discovered evidence of innocence, or (2) a new rule of constitutional law
made retroactive to cases on collateral review by the Supreme Court that was previously
unavailable. However, the Eighth Circuit denied Cox authorization to file a second or successive
motion, presumably because Johnson only affected Cox’s prior conviction for kidnapping, and
not his three remaining priors. United States v. Cox, No. 16-2029 (8th Cir. 2016). 1 Section 2255
is thus inadequate because Cox had “no reasonable opportunity to obtain earlier judicial
correction of a fundamental defect in his conviction or sentence because the law changed after

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The Court uses the term “presumably” because, unlike the disposition of a § 2255 motion in the district court, the
circuit courts decide whether to grant or deny authorization to file a second or successive § 2255 motion under 28
U.S.C. § 2255(h)(2) without explanation. Because Cox’s request to file a second or successive § 2255 motion was in
fact based on “a new rule of constitutional law made retroactive to cases on collateral review, that was previously
unavailable,” this Court is unsure why the Eighth Circuit did not grant authorization and allow the district court to
address the merits of Cox’s motion in a written opinion. The fact that denial of authorization to file a second or
successive § 2255 motion is not reviewable, see 28 U.S.C. § 2244(b)(3)(E), further supports this Court’s finding that
§ 2255 was inadequate or ineffective to test the legality of Cox’s detention. See also Gray-Bey v. United States, 209
F.3d 986, 990 (7th Cir. 2000) (“[A] district court presented with a petition for a writ of habeas corpus under § 2241
should analyze that petition on its own terms, without assuming that whatever cannot proceed under § 2255 also
cannot proceed under § 2241.”).

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his first 2255 motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). The remaining issue
is whether that inadequacy was caused by Cox’s procedural default.
The Government argues that Cox is not entitled to relief under § 2241 because it was his
own failure to raise his pre-CSA argument earlier that created the procedural default and made §
2255 inadequate or ineffective. Doc. 10, at 13. In support, the Government cites to the Eighth
Circuit’s decision in Lindsey v. United States for the proposition that a defendant’s procedural
default for failing to make an argument earlier cannot be excused simply because the argument
was foreclosed by circuit precedent at the time. 615 F.3d 998, 1000 (8th Cir. 2010); but see
Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (second Davenport factor satisfied if
“[i]t would have been futile” to raise claim clearly foreclosed by precedent).
Here, Cox’s argument that his pre-CSA conviction was not a “serious drug offense” under
the Controlled Substances Act was never foreclosed by precedent. However, his argument that he
no longer has three predicate offenses necessary for an enhanced sentence under the ACCA was
not just foreclosed by circuit precedent, it was not ripe until Johnson was decided. 2 The
argument would “have been pointless before Johnson but dispositive afterward.” Stanley v.
United States, 827 F.3d 562, 565 (7th Cir. 2016).
Consider the following hypothetical. At the time of his sentencing, the PSR identified
four prior predicate offenses to qualify Cox for an enhanced sentence under the ACCA. Cox and
his counsel did have the option to challenge the application of the pre-CSA offense, and the
district court would have been faced with two choices. First, the district court could have

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See, e.g., United States v. Schoenborn, 4 F.3d 1424, 1434 (7th Cir. 1993) (“The short answer to this argument is
that this court does not render decisions in hypothetical cases. One who invokes the jurisdiction of a federal court
must establish, before all else, that he has suffered a concrete and particularized injury; a conjectural one will not do.
The condition upon which Schoenborn's claim depends—revocation of his supervised release—has yet to occur (and
may never occur). The issue is not ripe for review; Schoenborn therefore lacks standing to raise it.”) (internal
citations omitted).

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addressed the objection and made a ruling. Since the Government only challenges Cox’s Petition
on procedural grounds, the Government appears to concede that Cox’s pre-CSA offense would
not qualify. Assuming in 1990 the court agreed, Cox would still have had three qualifying priors
and received the same sentence. Alternatively, the court could have invoked Rule 32(i)(3)(B) and
determined a ruling would be unnecessary because the matter would not affect sentencing. This
would have left Cox with the four prior offenses and the same sentence. Had Cox persisted in
1990, and had the court agreed and sentenced him under the ACCA but for only three predicate
offenses, the Eighth Circuit would likely have granted Cox authorization to file a successive §
2255 motion after Johnson, on which he would have prevailed. But because he did not raise the
challenge, and the sentencing court did not make a ruling, the Government says “too bad”; Cox
should be stuck with a life sentence instead of the 10-year sentence that would have been
imposed without the ACCA enhancement. 3
Moreover, the Government’s position on procedural default creates a standard that
encourages frivolous litigation. “It would just clog the judicial pipes to require defendants, on
pain of forfeiting all right to benefit from future changes in the law, to include challenges to
settled law in their briefs on appeal and in postconviction filings.” Montana v. Cross, 829 F.3d
775, 782 (7th Cir. 2016). If Cox’s claim is procedurally defaulted, defense counsel should be on
notice to challenge every aspect or dispute at a sentencing hearing in the event, albeit unlikely,
that the Supreme Court may some day advance a limited challenge to a certain prior conviction
that might make another prior conviction irrelevant for the purposes of that specific sentencing.
Courts expect defense counsel to not raise issues that do not affect sentencing. Although the

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The 10-year maximum would apply to Cox’s convictions for felon in possession of a firearm. Cox’s 30-year
sentence for possession with intent to distribute under 21 U.S.C. § 841(a)(1) remains unaffected, but Cox’s Petition
indicates that he has been incarcerated, with credit for good conduct time, for over thirty years.

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Court cannot be sure what defense counsel was thinking, it will not penalize the defendant as a
result.
In sum, because Petitioner had four prior offenses, any challenge to the use of the preCSA drug conviction would have evaded review by the sentencing court and the Eighth Circuit
until Johnson. See, e.g., United States v. Winston, 845 F.3d 876, 877 (8th Cir. 2017), cert.
denied, 137 S. Ct. 2201 (2017) (“Because Winston acknowledges two qualifying prior
convictions, the government need only establish that one of the other two also counts. We
conclude that the battery offense qualifies and need not address the conviction for terroristic
threatening.”). The same holds true with respect to Petitioner’s original § 2255 motion in 1994.
And because the Eighth Circuit denied Cox authorization to file a second or successive § 2255
motion based on Johnson, § 2255 is inadequate or ineffective to test the legality of his sentence.
Finally, the difference between having three, as opposed to two, qualifying prior convictions
means a significantly larger sentence under the ACCA. Petitioner has therefore shown cause and
prejudice for any procedural default.
CONCLUSION
For the reasons set forth above:
(1) Cox’s Petition [1] for writ of habeas corpus is GRANTED;
(2) Cox’s enhanced sentence under the Armed Career Criminal Act imposed by the Western
District of Missouri in Case No. 89-00196-01-CR-W-GAF is VACATED;
(3) The Respondent is DIRECTED to deliver Cox to the United States District Court for the
Western District of Missouri for resentencing;
(4) The Clerk is DIRECTED to enter final judgment in favor of Cox; and

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(5) The Clerk is DIRECTED to send copies of this Order to the United States District Court
for the Western District of Missouri and the Clerk thereof for filing in No. 89-00196-01CR-W-GAF.
(6) This matter is now terminated.

Signed on this 19th day of October, 2017.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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