Veach v. Sniezek et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, Philip M. Frazier added. Kuma J Deboo terminated. IT IS HEREBY ORDERED that respondent Sniezek shall, within 23 days of receipt of this petition for Writ of Habeas Corpus, answer and show cause why the writ should not issue. Service of the petition and this Memorandum and Order upon the United States Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois, shall constitute sufficient service. (Action due by 1/20/2012). Signed by Chief Judge David R. Herndon on 12/23/2011. (tjk)

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

JOHN RODNEY VEACH, No.
06083-025,
Petitioner,
vs.
T.R. SNIEZEK and KUMA J.
DEBOO,
Respondents.

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CIVIL NO. 11-cv-575-DRH

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
This case is before the Court on petitioner’s writ of habeas corpus.
Petitioner, an inmate in the Federal Correctional Institution (FCI) in Schuylkill,
Pennsylvania, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the sentence that was imposed on November 17, 2003, after his guilty
plea in this Court (See United States v. Veach, Case No. 02-cr-40074-GPM).
As an initial matter, a word about the named respondents is in order.
Respondent Deboo is the warden of FCI-Gilmer in Glenville, West Virginia, where
petitioner was confined at the time this action was filed. Petitioner has since been
transferred to FCI-Schuylkill and his new custodian is respondent Sniezek.
Accordingly, respondent Deboo, the former custodian, shall be dismissed from

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this action. See 28 U.S.C. § 2242.
Background
Petitioner pled guilty to one count of possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1). Based on this Court’s finding that
petitioner was a career offender under the United States Sentencing Guidelines
(U.S.S.G.) § 4B1.1(a), his offense level was enhanced from 25 to 32, and he was
given the maximum available sentence of 188 months. This Court concluded that
petitioner had three prior convictions for “crimes of violence.” Two of these prior
offenses were in Illinois, for aggravated battery under 720 Illinois Compiled
Statutes 5/12-4(b)(8).
Petitioner appealed from his conviction, but that appeal was dismissed
because of the appeal waiver contained in his plea agreement. United States v.
Veach, No. 03-4203 (7th Cir. May 11, 2005). Petitioner then filed a 28 U.S.C. §
2255 motion on July 18, 2006, alleging ineffective assistance of counsel. This
Court denied the § 2255 motion on July 18, 2008 (Doc. 11 in Veach v. United
States, Case No. 06-cv-565-GPM).
In April 2010, petitioner submitted a pro se motion for a certificate of
appealability to the United States Court of Appeals, Seventh Circuit. In it, he
argued that under the recent decisions in Begay v. United States, 553 U.S. 137
(2008), Chambers v. United States, 555 U.S. 122 (2009), and United States v.
Evans, 576 F.3d 766 (7th Cir. 2009), the two Illinois offenses that were used to
enhance his sentence no longer met the definition of “violent felonies.” The
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Seventh Circuit construed petitioner’s motion as a notice of appeal and directed it
to be filed as such in this Court (see Doc. 13 in Case No. 06-565-GPM).
On November 19, 2010, the Seventh Circuit dismissed the appeal for lack of
jurisdiction, finding it to be an untimely appeal from the denial of petitioner’s §
2255 motion. Notably, the Seventh Circuit indicated that petitioner’s argument
might be cognizable in a § 2241 petition, because that is “the proper avenue for
relief when § 2255 is ‘inadequate or ineffective to test the legality of his detention.’”
Veach v. United States, No. 10-2129 (7th Cir. Nov. 19, 2010) (quoting 28 U.S.C. §
2255(e)) (See also Doc. 26-1 in Case No. 06-cv-565-GPM). Following the Seventh
Circuit’s suggestion, petitioner filed the instant action on June 22, 2011.
Analysis
Petitioner argues that the § 2255 procedure is inadequate to test the legality
of his detention, because this Court was unwilling to reach his constitutional
claims due to the appellate waiver. However, the fact that petitioner did not
succeed in obtaining relief through his § 2255 motion does not demonstrate a
structural inadequacy in the § 2255 procedure itself. Nevertheless, for the
reasons below, the Court finds that petitioner’s claim is one of the few cases where
§ 2255 does not provide an adequate remedy, and meaningful review is available
only through a petition filed under § 2241. Therefore, the respondent shall be
directed to answer the petition. Nothing in this order, however, should be
construed as an opinion on the merits of petitioner’s claim.
Petitioner bases his claim that his two Illinois aggravated battery convictions
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should no longer be considered “crimes of violence” on a Supreme Court ruling
announced over four years after petitioner was sentenced. See Begay v. United
States, 553 U.S. 137 (2008) (holding that the felony offense of driving under the
influence of alcohol is not a violent felony within the meaning of 18 U.S.C. §
924(e), the Armed Career Criminal Act). Petitioner asserts that in light of Begay
and subsequent cases applying the analysis of that opinion, his Illinois convictions
for aggravated battery do not contain the requisite elements to qualify as crimes
of violence under the U.S.S.G. and therefore should not have been used to
enhance his sentence. He urges this Court to grant relief because his 188 month
“career offender” enhanced sentence is constitutionally impermissible under the
rule announced in Begay. Further, he notes that if his sentence were reduced
commensurate to his non-enhanced offense level of 25 and criminal history
category of III, he should be entitled to immediate release, having already served
the maximum allowable sentence for that offense level (Doc. 1-1, p. 11).
As a general rule, 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 normally 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). However, a petition
challenging the conviction may be brought pursuant to 28 U.S.C. § 2241 if the
remedy provided by 28 U.S.C. § 2255 is inadequate or ineffective. See also
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Waletski v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) (“[A] prisoner who
challenges his federal conviction or sentence cannot use [§ 2241] at all but instead
must proceed under 28 U.S.C. § 2255.”).
An inmate who has had the opportunity for one round of review under §
2255 may only file a second or successive § 2255 motion by first obtaining leave
by certification of the appropriate court of appeals that his motion meets one of
the listed criteria. 28 U.S.C. § 2255(h). This limitation alone does not render §
2255 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).
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 as having been imprisoned for a nonexistent offense.”
Davenport, 147 F.3d at 611 (emphasis added). The Circuit later 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).
Here, petitioner is not claiming that he is actually innocent of the Illinois
aggravated battery charges, or of the federal drug charge to which he pled guilty.
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However, he argues that he is “actually innocent” of being a career offender within
the meaning of U.S.S.G. § 4B1.1(a) because, under the analysis outlined by the
Begay court, he has not been convicted of three prior violent felonies under the
current understanding of the U.S.S.G. definition. The Seventh Circuit has
characterized the distinction between crimes and sentencing enhancements as
“one of degree, not one of kind[;]” thus, petitioner’s actual innocence claim may be
cognizable in a § 2241 petition. Welch v. United States, 604 F.3d 408, 415 (7th
Cir. 2010)).
The Begay decision challenged the broad coverage of the language in 18
U.S.C. § 924(e)(2)(B)(ii), making a “violent felony” any crime which involved
“burglary, arson, extortion, or crimes involving the use of explosives,” and stated
that had Congress meant for the language to be all-encompassing, it would not
have included these intentional crimes in the definition. Begay, 553 U.S. at 142.
Following the Begay opinion, courts have had to evaluate whether various crimes
should or should not be considered “violent felonies” within the meaning of that
statute, and thus whether they should subject a defendant to the statute’s
enhanced sentencing provisions. See, e.g., United States v. Sykes, 598 F.3d 334
(7th Cir. 2010) (finding an Indiana conviction for fleeing police in a vehicle is a
“violent felony” for sentence enhancement purposes); United States v. Woods, 576
F.3d 400 (7th Cir. 2009) (finding an Illinois involuntary manslaughter conviction
is not a “violent felony”).
Approximately two years after the Begay decision, the Seventh Circuit held
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(on May 4, 2010) that the Begay rule is retroactively applicable to cases on
collateral review. Welch v. U.S., 604 F.3d 408, 415 (7th Cir. 2010). However, in
this Circuit’s reading of the statute governing § 2255 motions, a retroactivity
decision rendered by any court other than the Supreme Court only applies to
cases on initial collateral review. Ashley v. United States, 266 F.3d 671, 674-75
(7th Cir. 2001). The Ashley court held that any district court, court of appeals, or
the Supreme Court can render a decision holding that a right newly recognized by
the Supreme Court is retroactively applicable to cases on collateral review on an
initial § 2255 motion, thus beginning the one-year limitations period for filing a §
2255 motion under the Antiterrorism and Effective Death Penalty Act (AEDPA).
Ashley, 266 F.3d at 674 (Ashley refers to motions filed under § 2255 ¶ 6(3), which
is now found under § 2255(f)(3)). However, a second or successive petition filed
under ¶ 8(2) [now (h)(2)] of § 2255 can only be authorized where the Supreme
Court itself made the new rule retroactive on collateral review. Id. at 674-75; 28
U.S.C. § 2255(h)(2) (second or successive motion must be certified to contain “a
new rule of constitutional law; made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable”).
In petitioner’s case, he has already had his initial § 2255 motion heard and
rejected by this Court, and could only obtain collateral review of his Begay
argument under § 2255 if the Seventh Circuit were to allow him to file a second §
2255 action in this Court. In the Seventh Circuit’s view, unless the Supreme
Court has itself held that Begay is retroactively applicable to cases on collateral
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review (which to date it has not done), an appellate court has no authority to grant
such a request under § 2255(h)(2). Ashley, 266 F.3d at 673. Therefore, it
appears that petitioner has indeed raised an “actual innocence” claim that § 2255
is procedurally inadequate to address. See Davenport, 147 F.3d at 610-12
(allowing prisoner (Nichols) to proceed under § 2241 where change in law came
after first § 2255 motion had been denied and Supreme Court had not made new
constitutional rule retroactive so as to allow a second § 2255 motion to be
certified).
Accordingly, the respondent shall answer the petition.
Disposition
The Clerk is DIRECTED to TERMINATE respondent Kuma J. Deboo,
Warden of FCI-Gilmer, as a party.
IT IS HEREBY ORDERED that respondent Sniezek shall, within 23 days
of receipt of this petition for Writ of Habeas Corpus, answer and show cause why
the writ should not issue. Service of the petition and this Memorandum and
Order upon the United States Attorney for the Southern District of Illinois, 750
Missouri Avenue, East St. Louis, Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that petitioner shall serve upon respondent (or
upon defense counsel once an appearance is entered), a copy of every pleading or
other document submitted for consideration by the Court. Petitioner shall include
with the original paper to be filed a certificate stating the date on which a true and

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correct copy of the document was served on respondent or defense counsel. Any
paper received by a district judge or magistrate judge that has not been filed with
the Clerk or that fails to include a certificate of service will be disregarded by the
Court.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to a United States Magistrate Judge for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his address during the pendency
of this action; the Court will not independently investigate his whereabouts. This
notification shall be done in writing and not later than seven (7) days after a
transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal
of this action for want of prosecution. See FED. R. CIV. P. 41(b).

David R. Herndon
2011.12.23
15:36:12 -06'00'

IT IS SO ORDERED.
DATED: December 23, 2011

Chief Judge
United States District Court
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