Van v. Kallis

Filing 13

ORDER AND OPINION: Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is DISMISSED with prejudice pursuant to §§ 2244(a) and 2255(e). This case is CLOSED. (SEE WRITTEN ORDER AND OPINION.) Entered by Judge Sue E. Myerscough on 4/4/2019. (GL, ilcd)

E-FILED

Thursday, 04 April, 2019 03:51:25 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
LAFAYETTE DEANDRE VAN, )
)
Petitioner,
)
)
v.
)
)
STEVE KALLIS, Warden
)
)
Respondent. )

Case No. 18-cv-1019

ORDER AND OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on Petitioner Lafayette
Deandre Van’s (hereinafter “Petitioner” or “Van”) Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). Petitioner
is incarcerated at the Federal Correctional Institution in Pekin,
Illinois. For the reasons stated below, Petitioner’s Petition (Doc. 1)
is DISMISSED with prejudice.
I. BACKGROUND1
In 2007, a jury in the United States District Court for the

As dictated by the analogous federal habeas corpus rules for proceedings
under 28 U.S.C. § 2254 and § 2255, the facts recounted here are taken from
Respondent’s Response to the Petition, (Doc. 7), unless otherwise noted. See
28 U.S.C. § 2248.
1

District of Minnesota found Van guilty of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). The
baseline statutory maximum for this offense is ten years. However,
the district court found that Van qualified as an armed career
criminal pursuant to the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), for having three or more predicate convictions “for
a violent felony or a serious drug offense.” As a result, Van’s
statutory sentencing range increased to 15 years to life. This
finding was based on Van’s 1999 conviction for Minnesota simple
robbery in violation of Minn. Stat. § 609.24, and his three 2003
convictions for Minnesota drug offenses.
At sentencing, Van objected to being designated an armed
career criminal, arguing that his three felony drug convictions
should be considered only one offense. The sentencing court
rejected his argument, finding each conviction was a separate
offense, and noted that he had a fourth qualifying predicate felony,
the 1999 simple robbery conviction. See United States v. Van, No.
CIV. 12-2107 MJD, 2013 WL 1703444, at *1 (D. Minn. Apr. 19,
2013). Van was sentenced to a term of imprisonment of 213
months and nineteen days. Van appealed, and the Eighth Circuit
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affirmed Van’s conviction and sentence. United States v. Van, 543
F.3d 963, 967 (8th Cir. 2008).
Van has made numerous attempts to obtain post-conviction
relief, often raising the argument that he does not have the
requisite three felonies to qualify as an armed career criminal
under § 924(e). See, e.g., Van v. Wilson, No. CIV. 10-210-GFVT,
2011 WL 2550537, at *3 (E.D. Ky. June 23, 2011) (§ 2241 Petition
dismissed under § 2255(e)); United States v. Van, No. CIV. 12-2107
MJD, 2013 WL 1703444, at *2 (D. Minn. Apr. 19, 2013) (initial
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 denied as untimely); Van v. United States, No. 153304 (8th Cir.) (application seeking authorization to file a
successive § 2255 Motion relying on Johnson v. United Sates, 135
S.Ct. 2551 (2015)); Van v. United States, No. 16-2807 (8th Cir.)
(same).
On January 16, 2018, Van filed the instant Petition (Doc. 1)
pursuant to 28 U.S.C. § 2241, again arguing that he does not
qualify as an armed career criminal under § 924(e). He argues that
his Minnesota simple robbery conviction did not require the
sufficient amount of force in light of Curtis Johnson v. United
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States, 559 U.S. 133 (2010), and that, in light of Mathis v. United
States, 136 S.Ct. 2243 (2016), and United States v. Hinkle, 832
F.3d 569 (5th Cir. 2016), two of his Minnesota drug offenses are
categorically not ACCA predicates.
In his Petition, Van disclosed to the Court some of his postconviction relief petitions and motions, but failed to reference his
prior attempt to rely on Mathis and Hinkle for relief in a § 2241
petition in this district in December 2016. Van v. Krueger, No. 16CV-1488, 2017 WL 727034, at *1 (C.D. Ill. Feb. 23, 2017). In that
proceeding, Van argued that “Minnesota’s controlled substance
offenses contain alternative means, not alternative elements, and
therefore two of his ACCA “serious drug offenses” predicated on his
Minnesota controlled substance offenses do not match up under
the categorical approach.” Id. *3. Judge McDade summarily
dismissed the petition, finding it did not have merit because “there
are no elements present in the Minnesota statutes of conviction
that render them broader than the definition of “serious drug
offense” in 18 U.S.C. § 924(e)(2)(A)(ii).” Id. at *4. Van did not
challenge his simple robbery conviction in this proceeding.

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Respondent filed his response to Van’s Petition on February
28, 2018 (Doc. 7), and argues that Van has failed to meet the
requirements to proceed under the § 2255(e) savings clause.
Specifically, Respondent argues that Mathis v. United States, 136
S.Ct. 2243 (2016), did not announce a new rule that applies
retroactively, that Van’s claim was not previously unavailable, and
that Van has not shown a miscarriage of justice. Respondent’s
filing also did not note Van’s previous § 2241 petition that raised
this claim. Van did not file a timely reply. This Order follows.
II. 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
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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 that “alternative relief under
§ 2241 is available only in limited circumstances: specifically, only
upon showing “(1) that he relies on ‘not a constitutional case, but a
statutory-interpretation case, so [that he] could not have invoked it
by means of a second or successive section 2255 motion,’ (2) that
the new rule applies retroactively to cases on collateral review and
could not have been invoked in his earlier proceeding, and (3) 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.’”
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016), cert. denied
sub nom. Montana v. Werlich, 137 S. Ct. 1813, 197 L. Ed. 2d 758
(2017) (citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)).
III. DISCUSSION
Neither of Van’s claims for relief can proceed. As Van has
already raised Mathis and Hinkle claims with regard to his prior
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felony drug offenses, this Court is not required to review the claim
again. See 28 U.S.C. § 2244(a) (“No circuit or district judge shall
be required to entertain an application for a writ of habeas corpus
to inquire into the detention of a person pursuant to a judgment of
a court of the United States if it appears that the legality of such
detention has been determined by a judge or court of the United
States on a prior application for a writ of habeas corpus.”). Judge
McDade thoroughly analyzed Van’s claim and held it was meritless
because “there are no elements present in the Minnesota statutes
of conviction that render them broader than the definition of
“serious drug offense” in 18 U.S.C. § 924(e)(2)(A)(ii).” Van, 2017
WL 727034, at *4. Van’s argument here is identical. When Van
failed to appeal, he lost any further right to pursue his Mathis
claims. Moreover, the Court agrees with Judge McDade’s analysis
on the merits. Accordingly, the Court will dismiss this claim
pursuant to § 2244(a).
Van also argues that his 1999 Minnesota simple robbery
conviction is not a violent felony in light of Curtis Johnson v.
United States, 559 U.S. 133 (2010). However, as Respondent
argues, this case was decided before Van filed his initial § 2255
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Motion. Van has presented no argument as to why § 2255 would
have been inadequate or ineffective to address this claim.
Moreover, this claim is meritless. Van seeks to rely on United
States v. Eason, 829 F.3d 633 (8th Cir. 2016), in which the Eighth
Circuit held that an Arkansas robbery statute was categorically not
an ACCA predicate offense. Id. at 640-41. However, both the
Eighth Circuit and the Seventh Circuit have since held that
Minnesota Simple Robbery under Minn. Stat. § 609.24 qualifies as
a violent felony predicate for the ACCA. See United States v. Libby,
880 F.3d 1011, 1015-16 (2018); United States v. Jennings, 860
F.3d 450 (7th Cir. 2017). In Libby, the Eighth Circuit specifically
distinguished Eason and the Arkansas statute because the
Arkansas statute “criminalized a threat of any bodily impact,
restraint, or confinement,” while Minn. Stat. “§ 609.24 requires
proof of a threat of the imminent use of force to overcome the
person’s resistance.” Id. at 1016. Accordingly, Eason is of no use
to Van even if he could otherwise proceed under § 2255(e).
IV. CONCLUSION
For the reasons stated above, Petitioner’s Petition for Writ of
Habeas Corpus (Doc. 1) is DISMISSED with prejudice pursuant to
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§§ 2244(a) and 2255(e). This case is CLOSED.

ENTER: April 4, 2019
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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