Moore v. Krueger

Filing 12

ORDER & Opinion denying Petitioner's Amended 5 Petition for Writ of Habeas Corpus (2241). Civil Case Terminated. Entered by Judge Joe Billy McDade on 7/26/2017. (RK, ilcd)

E-FILED

Wednesday, 26 July, 2017 03:27:37 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DEMETRIUS MOORE,
Petitioner,
v.
J.E. KRUEGER, Warden, FCI Pekin
Respondent.

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Case No. 3:16-cv-03295-JBM

ORDER & OPINION
The matter before the Court is Petitioner Demetrius Moore’s Amended Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. For the following reasons,
Petitioner’s Amended Petition (Doc. 5) is denied.
BACKGROUND
On January 14, 2014, Petitioner pled guilty to one count of bank robbery by
force or violence, in violation of 18 U.S.C. §§ 2113(a) and 2113(d), and one count of
knowingly brandishing a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). See Plea Agreement, United States v. Moore,
No. 2:13-cr-00041-LA-1 (E.D. Wis. Jan. 14, 2014). In doing so, Petitioner pled guilty
to taking approximately $2,400 from the presence of a teller by force, violence, and
intimidation at U.S. Bank in Butler, Wisconsin. Id. On April 23, 2014, Judge Adelman
sentenced Petitioner to a total of 102 months incarceration, followed by five years of
supervised release. See J., United States v. Moore, No. 2:13-cr-00041-LA-1 (E.D. Wis.
Apr. 24, 2014). On June 13, 2016, Petitioner filed a motion to vacate, set aside or

correct a sentence pursuant to 28 U.S.C. § 2255. See Moore v. United States, No. 2:16cv-00719-LA (E.D. Wis. Jun. 13, 2016). On June 23, 2016, Petitioner’s § 2255 motion
was denied. See J., Moore v. United States, No. 2:16-cv-00719-LA (E.D. Wis. Jun. 23,
2016).
On October 31, 2016, Petitioner filed an “Emergency Petition for
Constitutional Writ of Habeas Corpus ad Subjiciendum.” (Doc. 1). Because it was
unclear whether Petitioner was seeking to file a § 2255 motion or a § 2241 petition,
the Court ordered Petitioner to file an Amended Complaint identifying which way
Petitioner wanted to proceed. (Doc. 2). On January 9, 2017, Petitioner filed this
Amended Petition, indicating that he wished to proceed as a § 2241 petition. (Doc. 5).
At the time Petitioner filed, he was incarcerated at the federal correctional institute
in Pekin, Illinois. (Doc. 9). Petitioner was subsequently transferred to the federal
correctional institute in Yazoo City, Mississippi. (Doc. 8). Because of the change in
the location of Petitioner’s custody, the Court applied the precedent of the United
States Court of Appeals for the Seventh Circuit and transferred the case to the
Southern District of Mississippi. (Doc. 9). Then, the Southern District of Mississippi
transferred the case back to the Central District of Illinois, because it was bound by
Fifth Circuit precedent, which holds that jurisdiction over a § 2241 habeas petition
belongs to the court of custody when the petition is originally filed. (Doc. 15). The
Southern District of Mississippi also consulted with parties, both of which consented1

This Court is now the proper venue to hear this matter under 28 U.S.C. § 1404(a),
which allowed the Southern District of Mississippi to transfer the civil action to “any
district or division where it might have been brought or to any district or division to
which all parties have consented.” The United States Court of Appeals for the Seventh
Circuit has held that the District Court’s subject matter jurisdiction over habeas

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and preferred that the case be transferred back to the Central District of Illinois.
(Doc. 15).
Therefore, the case was transferred back to the Central District of Illinois.
(Doc. 15). Because the case had originally been misfiled in the Springfield Division of
the Central District, Judge Myerscough transferred the case to the Peoria Division,
which is the judicial district in which the federal correctional institution in Pekin lies.
See July 25, 2017 Text Order.
Petitioner’s Amended Complaint argues that the federal government did not
have jurisdiction over the land where he committed his crime because the Wisconsin
Governor did not cede jurisdiction. Petitioner argues that 40 U.S.C. § 3112 and
Adams v. United States, 319 U.S. 312 (1943), require the state governor to cede
jurisdiction over the state in order for there to be federal criminal jurisdiction. (Doc.
5 at 2-3).
LEGAL STANDARD
Pro se pleadings are given liberal construction and are held to a less stringent
standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam); Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014).
However, a court must still decide whether a petition adequately presents the legal
and factual basis for a claim. Id.

petitions arises under 28 U.S.C. § 1331, because the claims arise under federal law.
Harris v. Warden, 425 F.3d 386, 388 (7th Cir. 2005) (“Sections 2241 and 2255 deal
with remedies; neither one is a jurisdictional clause.”). Additionally, the Seventh
Circuit has held that “the identity of the custodian and the location of the litigation
concern venue and personal jurisdiction, rather than subject-matter jurisdiction, and
hence may be waived or forfeited by the respondent.”). Id.

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This Court, in its discretion, applies the Rules Governing Section 2254 Cases
in the United States District Courts to all cases that purport to be brought under
Chapter 153 of Title 28 of the United States Code that are not explicitly brought
under 28 U.S.C. §§ 2254 and 2255. See Rules Governing Section 2254 Cases in the
United States District Courts, R 1(b); 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 28 U.S.C. § 2243’s deadlines and gives court discretion
to set deadlines). 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
determined Petitioner is not entitled to habeas corpus relief.
Additionally, federal prisoners, like Petitioner, who wish to collaterally attack
their convictions or sentences ordinarily must 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 605, 609-10 (7th Cir. 1998).
In Davenport, the United States Court of Appeals for the Seventh Circuit
articulated three conditions that a petitioner must meet in order to invoke the
Savings Clause on the basis of a change in law. Id. at 610-612. These conditions were

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recently summarized in Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013), another case
in which a petitioner brought a § 2241 petition based upon a Supreme Court decision
interpreting the residual clause of the ACCA. First, a prisoner “must show that he
relies on a 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.” Id. at 586 (citations omitted) (internal quotation marks
omitted).
ANALYSIS
Petitioner’s Amended Complaint must be dismissed for two reasons. First,
Petitioner fails to meet the Davenport requirements to be able to challenge his
sentence through a § 2241 petition, rather than a § 2255 motion. Second, the merits
of Petitioner’s claim must be summarily rejected.
Petitioner fails to meet the Davenport requirements in order to be allowed to
bring a § 2241 motion. Petitioner does not address the Davenport requirements.
Rather, he states that he is “testing the legality of his imprisonment” because the
“United States was without federal criminal jurisdiction and the error is grave
enough to be deemed a miscarriage of justice.” (Doc. 5 at 1). However, the only case
that Petitioner relies on is Adams v. United States. 319 U.S. 312, 312 (1943). Adams
was decided in 1943 and was clearly available for Petitioner to use during his first §
2255 motion in 2016. Therefore, Petitioner cannot meet the Davenport requirements
and his petition must be dismissed.

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Additionally, even if Petitioner could meet the Davenport requirements,
Petitioner’s Amended Petition fails on its merits because it puts forth a sovereign
citizen argument, which must be summarily rejected. Although not explicitly stated,
Petitioner’s writ of habeas corpus can be construed as a “sovereign citizen” claim.2
Sovereign citizens claim that the United States Government does not have
jurisdiction over their crimes and use a variety of legal citations to support their
claims. The United States Court of Appeals for the Seventh Circuit has instructed
district courts to “summarily reject” the “worn argument that a defendant is
sovereign.” United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (collecting cases
that reject the “sovereign citizen” argument as frivolous). This alone supports the
denial of Petitioner’s Amended Petition.
Sovereign citizen claims are summarily rejected, because it has been clearly
established that the laws of the United States apply to all persons within its borders
and this includes the Petitioner and his robbery of the bank in Butler, Wisconsin.
United States v. Phillips, 326 F. App’x 400, 400 (7th Cir. 2009); see also Benabe, 654
F.3d at 767 (announcing that regardless of an individual’s claimed status of descent,

Although Petitioner did not use the term “sovereign citizen” the Court labeled his
claim as such because of the substance of Petitioner’s argument. “Sovereign citizens
believe the government is operating outside of its jurisdiction and generally do not
recognize federal, state, or local laws, policies, or government regulations.” Federal
Bureau of Investigations, Sovereign Citizens: An Introduction for Law Enforcement
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(2010),
available
at:
http://www.mschiefs.org/wpcontent/uploads/2012/05/Sovereign_Citizens_Intro_For_LE.pdf. Petitioner’s main
argument is that the federal government was operating outside its jurisdiction
because the Wisconsin Governor did not cede jurisdiction over the land where he was
arrested and, therefore, the federal government did not have jurisdiction to arrest
him. Therefore, the Court labels it a “sovereign citizen” argument based on its
substance.
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that person is not beyond the jurisdiction of the courts); United States v. Schneider,
910 F.2d 1569, 1570 (7th Cir. 1990) (explaining that “sovereign citizen” arguments
have “no conceivable validity in American law).
Furthermore, district courts have original jurisdiction over “all offenses
against the laws of the United States.” 18 U.S.C. § 3231; see also United States v.
McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (‘The federal court’s jurisdiction is not
limited to federal crimes committed on federal lands. Pursuant to 18 U.S.C. § 3231,
‘the district courts of the United States have original jurisdiction, exclusive of the
States, of all offenses against the laws of the United States.’”) (citations omitted);
United States v. Hornback, Nos. 3:10-CR-13-DCR-REW, 3:13-CV-7296-DCR-REW,
2014 U.S. Dist. LEXIS 83586, *24 (E.D. Ky. May 6, 2014) (citing United States v.
Sitton, 968 F.2d 947, 953 (9th Cir. 1992)) (“This argument is patently meritless.
Federal courts have exclusive jurisdiction over offenses against the laws of the United
States under 18 U.S.C. § 3231 and the permission of the states is not a prerequisite
to that jurisdiction.”).
The United States Constitution created a federal system which allows for
concurrent jurisdiction, in which both the national government and the states’
governments maintain sovereignty over the same territory. See, e.g., Printz v. United
States, 521 U.S. 898, 918 (1997). States have the general authority to create laws to
punish criminal offenses in their territory as part of their policing power. United
States v. Morrison, 529 U.S. 598 (2000). However, the federal government still
retained the authority to create and punish federal criminal offenses as “necessary
and proper” to the execution of Congress’s enumerated powers. See United States v.

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Comstock, 560 U.S. 126, 135-36 (2010); United States v. Worrall, 2 U.S. 384, 394
(1798). Therefore, a person in the United States is subject to the jurisdiction of both
the federal government and the state government, where the individual is located.
Likewise, an individual is subject to the criminal laws of both. The consent of a state
governor is not required to prosecute someone for a federal offense.
Petitioner’s argument that 40 U.S.C. § 3112 to requires a governor to cede
jurisdiction for Petitioner to be arrested and charged with a federal crime is meritless
and frivolous. Section 3112 establishes laws for acquiring exclusive federal
jurisdiction over land it acquires from the states; thereby creating a federal enclave.
However, Petitioner’s crime occurred at a U.S. Bank in Butler, Wisconsin and there
has been no indication that Petitioner’s crime occurred in a federal enclave.
Therefore, 40 U.S.C. § 3112 has no application here. See Hornback, 2014 U.S. Dist.
LEXIS 83586, at *27 n. 11; see also Thomas v. United States, Nos. 8:13-CV-215-T15Map, 8:07-CR-203-T-27MAP, 2013 U.S. Dist. LEXIS 130123, at *2 (M.D. Fla. Sept.
11, 2013) (finding a similar claim “completely frivolous” and that § 3112 has “nothing
to do” with cases, like here, whose jurisdiction rests on § 3231). As explained by the
Eastern District of Michigan:
“Contrary to [petitioner’s] argument, neither the Exclusive Legislation
Clause nor § 3112 applies because the United States has not claimed it
has the exclusive right to promulgate laws over the lands where the
crimes were committed. The fact that [the state] has sovereignty within
its boundaries does not bar the United states from having concurrent
jurisdiction to indict and prosecute [petitioner] for federal crimes
occurring within those same boundaries. Thus, the federal government
does not need to obtain the consent of the governor of Michigan to
prosecute [petitioner].”

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United States v. Abbott, No. 2:16-cr-20290, 2017 U.S. Dist. LEXIS 92124, at *3-4 (E.D.
Mich. Jun. 15, 2017) (citations omitted).
Furthermore, Petitioner’s argument that a 1943 United States Supreme Court
case provides precedent for his interpretation of § 3112 is equally meritless. (Doc. 1
at 4). In Adams v. United States, the Supreme Court determined the narrow issue
that the United States had not accepted exclusive jurisdiction of a military base,
where three soldiers were accused of raping a civilian woman; therefore, the Supreme
Court held that there was not jurisdiction to charge the soldiers with a crime that
had to be committed within special maritime or territorial jurisdiction. 319 U.S. at
312.
However, because Petitioner was not convicted of a maritime crime nor did he
commit his offense on a military base, Petitioner’s argument is meritless. This
argument based on Adams has been previously rejected by numerous courts,
including this Court. See, e.g., Moose v. Krueger, No. 1:16-cv-01403-JBM, 2016 U.S.
Dist. LEXIS 176232, at *9-10 (C.D. Ill. Dec. 20, 2016); United States v. Eley, No. 2:16CR-12-DBH, 2017 U.S. Dist. LEXIS 33806, at *3-5 (D. Me. Mar. 9, 2017) (declaring
that the defendant’s reliance of § 3112 and Adams was “simply and unmistakably
wrong”); United States v. Whitlow, No. 4:14-CR-3015, 2016 U.S. Dist. LEXIS 144054,
at *3-4 (D. Neb. Oct. 18, 2016) (“But this case does not deal with property over which
the government was required to accept jurisdiction, and the Court has original
jurisdiction over all violations of federal law. Adams is not applicable here.”); United
States v. Smith, Nos. 3:08-CR-31-JMH-HAI-1, 3:15-CV-07407-JMH-HAI, 2016 U.S.
Dist. LEXIS 188058, at 34-35 (E.D. Ky. Jun. 22, 2016) (“However, Defendant’s

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reliance on Adams is misplaced as Adams dealt with the very narrow issue of the
jurisdiction for the trial of three soldiers who committed rape in a military camp. . . .
Accordingly, any argument Defendant attempts to assert on this point is meritless.”);
Abril-Pérez v. United States, Nos. 14-1350 (JAF), 10-251-26, 2014 U.S. Dist. LEXIS
88159, *3-4 (D.P.R. June 25, 2014) (“This reliance is misplaced. Adams is about the
narrow issue of whether a rape that occurred at a government military camp could
be tried as a federal crime, although the government had not accepted jurisdiction
over the camp as was required by statute. Unlike Adams, Abril-Pérez’s case does not
involve military property or property over which the government was required to
formally accept jurisdiction.”); Taylor v. United States, Nos. 1:09-cv-24; 1:04-cr-177,
2009 U.S. Dist. LEXIS 55334, at *7 (E.D. Tenn. June 29, 2009) (“Adams has no
applicability to the instant case involving an indictment for a federal offense which
occurred in the State . . . .”); United States v. Genard, No. 07-136, 2007 U.S. Dist.
LEXIS 62635, at *2 n.1 (E.D. La. Aug. 16, 2007) (rejecting the application of Adams
to a criminal trial for failure to file income tax returns).
Therefore, it is clear that Petitioner’s argument that there was not federal
jurisdiction over the state of Wisconsin because the governor did not consent to
jurisdiction is completely meritless and frivolous. For the reasons described above,
Petitioner’s Amended Petition (Doc. 5) is denied.
CONCLUSION
IT IS THEREFORE ORDERED that Petitioner’s Amended Petition for a Writ
of Habeas Corpus (Doc. 5) is DENIED.
CASE TERMINATED.
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Entered this _26th_ day of July, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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