Evans v. Hollingsworth

Filing 17

ORDER DISMISSING CASE without prejudice. Signed by Chief Judge David R. Herndon on 4/28/2011. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOHNNY LEE EVANS,
Petitioner,
vs.
LISA J.W. HOLLINGSWORTH,
Respondent.

No. 09 - CV - 00881 DRH

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner Johnny Lee Evans, an inmate in the United States Penitentiary in
Marion, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 (Doc.
1). This case is now before the Court on remand from the United States Court of
Appeals, Seventh Circuit. The appellate court’s January 4, 2011, order vacated this
Court’s judgment and order (Docs. 5 & 6) construing petitioner’s action as a
successive § 2255 motion and dismissing it for lack of jurisdiction. Accordingly, as
instructed by the court above, this Court now reviews the § 2241 petition to
determine whether it must be dismissed under 28 U.S.C. § 2255(e).
RULE 4 of the RULES GOVERNING SECTION 2254 CASES IN UNITED STATES DISTRICT
COURTS provides that upon preliminary consideration by the district judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct
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the clerk to notify the petitioner.” RULE 1(b) gives this Court the authority to apply
the RULES to other habeas corpus cases. After carefully reviewing the petition as
directed by the appellate court, the Court concludes that petitioner is not entitled to
relief, and the petition must be dismissed.
Petitioner was convicted of conspiracy to transport an individual in interstate
commerce for the purpose of prostitution and money laundering. He was sentenced
to 60 months’ imprisonment on one count, to be run consecutively to the 151-month
sentences imposed on two other counts, for an aggregate term of 211 months’
imprisonment. His conviction and sentence were affirmed on appeal. United States
v. Evans, 272 F.3d 1069 (8th Cir. 2001). Petitioner then challenged his sentence
pursuant to 28 U.S.C. § 2255. In that motion, petitioner alleged several instances of
counsel’s purported ineffectiveness, including sentencing errors, but he did not raise
the issue he presents in this action (as discussed below). In an order filed June 13,
2005, petitioner’s motion was denied, and no appeal was taken from that order.
Evans v. United States, Case No. 03-cv-845-JCH (E.D. Mo., filed June 19, 2003).
In April 2007, petitioner filed a motion in his criminal case to amend the
judgment (Doc. 865, criminal case). Petitioner noted that his original sentence and
judgment referred to the knowing transportation of “an individual under the age of
18 years” in interstate commerce, although he was not specifically convicted of
activity involving minors. This motion was granted (Doc. 871), and an amended
judgment was entered that removed any reference to the age of the individuals (Doc.
872). However, his sentence was not modified. As Judge Hamilton stated in her
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order, “No resentencing is necessary because his Presentencing Report indicates that
the proper conviction was used to calculate his sentence” (Doc. 871).
In the petition before the Court, petitioner asserts that Judge Hamilton was
incorrect in stating that his sentence was properly calculated. He states that in his
Presentencing Report, his sentence was enhanced several levels due to a finding that
two of his victims were minors. Petitioner further asserts that without these
enhancements, his sentencing range would have been 70–87 months, rather than
121–151 months.
Normally a person may challenge his federal conviction only by means of a
motion brought before the sentencing court pursuant to 28 U.S.C. § 2255, and this
remedy usually supersedes the writ of habeas corpus. A § 2241 petition by a federal
prisoner is generally limited to challenges to the execution of the sentence. Valona
v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Atehortua v. Kindt, 951 F.2d
126, 129 (7th Cir. 1991); see also Waletski v. Keohane, 13 F.3d 1079, 1080 (7th
Cir. 1994) (“prisoner who challenges his federal conviction or sentence cannot use
[§ 2241] at all but instead must proceed under 28 U.S.C. § 2255.”).
Petitioner asserts that a § 2241 petition is the proper avenue to bring what he
describes as a challenge to the way in which his sentence was imposed, and that he
has exhausted his opportunity to present this argument in another § 2255 action.
Essentially, his claim is that he is one of those for whom the § 2255 motion is
inadequate or ineffective to test the legality of his detention. However, the fact that
petitioner may be barred from bringing a successive § 2255 petition is not, in itself,
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sufficient to render it an inadequate remedy. In re Davenport, 147 F.3d 605, 609–10
(7th Cir. 1998) (§ 2255 limitation on filing successive motions does not render it an
inadequate remedy for a prisoner who had filed a prior § 2255 motion). Further,
“[f]ailure to comply with the requirements of the § 2255 statute of limitations is not
what Congress meant when it spoke of the remedies being ‘inadequate or ineffective
to test the legality of his detention.’” Montenegro v. United States, 248 F.3d 585, 594
(7th Cir. 2001), overruled on other grounds, Ashley v. United States, 266 F.3d 671
(7th Cir. 2001)1; see also Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000) (“Neither
will a claim of procedural bar suffice to demonstrate that section 2255 relief is
inadequate or ineffective.”); United States v. Barrett, 178 F.3d 34, 49–50 (1st Cir.
1999); Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997) (noting that
section 2255’s substantive and procedural barriers by themselves do not establish
that section 2255 is inadequate or ineffective); In re Dorsainvil, 119 F.3d 245, 251
(3d Cir. 1997). Instead, a petitioner under § 2241 must demonstrate the inability of
a § 2255 motion to cure the defect in the conviction.
In Davenport, the Seventh Circuit considered the meaning of “inadequacy” for
purposes of § 2255. The court stated that “[a] procedure for post-conviction relief can
fairly be termed inadequate when it is so configured as to deny a convicted defendant
any opportunity for judicial rectification of so fundamental a defect in his conviction

Ashley overruled only Part III of Montenegro. Ashley held that a decision that a right initially
recognized by Supreme Court is retroactively applicable to cases on collateral review, as will begin
one-year limitations period under Antiterrorism and Effective Death Penalty Act (AEDPA), can be made
by a Court of Appeals or a district court, as well as by Supreme Court. Ashley, 266 F.3d at 674.
1

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as having been imprisoned for a nonexistent offense.” In re Davenport, 147 F.3d
at 611 (emphasis added).
Every court that has addressed the matter has held that § 2255 is
“inadequate or ineffective” only when a structural problem in § 2255
forecloses even one round of effective collateral review—and then only
when as in Davenport the claim being foreclosed is one of actual
innocence. See, e.g., Cradle v. United States ex rel. Miner, 290 F.3d
536, 538–39 (3d Cir. 2002); In re Jones, 226 F.3d 328, 333–34 (4th
Cir. 2000); Reyes-Requena v. United States, 243 F.3d 893, 902–03
(5th Cir. 2001); United States v. Peterman, 249 F.3d 458, 462 (6th Cir.
2001); Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).
Taylor v. Gilkey, 314 F.3d 832, 835–36 (7th Cir. 2002).
When, then, may a petitioner successfully argue that he is “actually innocent”
under Davenport? The Seventh Circuit clarified this standard, stating that “actual
innocence” is established when a petitioner can “admit everything charged in [the]
indictment, but the conduct no longer amount[s] to a crime under the statutes (as
correctly understood).” Kramer v. Olson, 347 F.3d 214, 218 (7th Cir. 2003).
Such is not the case here. Petitioner does not suggest that the charged conduct
is no longer a crime. To the contrary, petitioner merely asserts that the trial court
improperly refused to reconsider his sentence in light of its order amending its
judgment to remove the reference to the age of the individual petitioner was convicted
of transporting. Petitioner is thus seeking to challenge the validity of his sentence,
which is the type of collateral attack on a conviction that is properly pursued under
§ 2255, and which petitioner could have raised in his first § 2255 motion. See United
States v. Lloyd, 398 F.3d 978, 979–80 (7th Cir. 2005). As such, the action must be
brought in the court where petitioner was convicted, after obtaining leave from the
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appropriate court of appeals to file a successive collateral attack. See § 2255(h).
For the reasons stated above, § 2241 cannot provide petitioner with the
desired relief, and this action is summarily DISMISSED without prejudice.
IT IS SO ORDERED.
Signed this 28th day of April, 2011.

Digitally signed by
David R. Herndon
Date: 2011.04.28
12:05:38 -05'00'
Chief Judge
United States District Court

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