Jones v. Cross

Filing 15

MEMORANDUM AND OPINION. The petition for writ of habeas corpus is DENIED and this case is DISMISSED WITH PREJUDICE. The Clerk of Court shall enter judgment in favor of respondent. Signed by Magistrate Judge Clifford J. Proud on 6/9/2014. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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MICHAEL EVERETT JONES,
Petitioner,
vs.

JAMES CROSS, JR.,
Respondent.

Civil No. 12-cv-1228-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
Michael Everett Jones filed a petition for writ of habeas corpus under 28
U.S.C. §2241. (Doc. 1).

In 2006, he was convicted of aiding and abetting

possession with intent to distribute cocaine in the Western District of Tennessee.
Because he had two prior convictions for felony drug offenses, the sentencing
court applied the career offender enhancement under U.S. Sentencing Guideline
§4B1.1. He was sentenced to 240 months imprisonment.
Jones argues that the career offender enhancement should not have been
applied to him because his prior Illinois drug conviction was not a felony.
Respondent argues that Jones is precluded from bringing that claim in a §2241
petition.
Relevant Facts and Procedural History
As is set forth in the supplement to the petition, Doc. 4, Jones had two

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This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 14.

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prior drug convictions, one state and one federal. The state conviction is at issue
here. In 1996, he was convicted of violating the Illinois Controlled Substances
Act, 720 ILCS 570/401(c), and was sentenced to two years of probation.

He

contends that this conviction does not qualify as a felony. See, Doc. 4, pp. 4-5.
Petitioner filed a direct appeal in which he argued that the evidence was
insufficient to support the verdict.
2776785 (6th Cir. 2008).

See, United States v. Jones, 2008 WL

He also filed a motion to vacate, set aside or correct

his sentence under 28 U.S.C. §2255 in the Western District of Tennessee. He
argued in that motion that counsel had been ineffective in several ways, but raised
no issue related to the career offender enhancement. See, Doc. 8, Ex. 4.
Applicable Legal Standards
Generally, petitions for writ of habeas corpus under 28 U.S.C. §2241 may
not be used to raise claims of legal error in conviction or sentencing, but are
limited to challenges regarding the execution of a sentence.
United States, 138 F.3d 693, 694 (7th Cir.1998).

See, Valona v.

Rather, the vehicle for

challenging a federal conviction or sentence is a motion pursuant to 28 U.S. C.
§2255, brought in the court of conviction. Indeed, a §2255 motion is ordinarily
the “exclusive means for a federal prisoner to attack his conviction.” Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003).
A prisoner is generally limited to only one challenge of his conviction and
sentence under §2255. A prisoner may not file a “second or successive” motion
unless a panel of the appropriate court of appeals certifies that such motion

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contains either 1) newly discovered evidence “sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the movant
guilty of the offense,” or 2) “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable.”
28 U.S.C. §2255(h).
It is possible, under very limited circumstances, for a prisoner to challenge
his federal conviction or sentence under §2241. 28 U.S.C. §2255(e) contains a
“savings clause” which authorizes a federal prisoner to file a §2241 petition where
the remedy under §2255 is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). See, United States v. Prevatte, 300 F.3d 792,
798–99 (7th Cir.2002).

“A procedure for postconviction relief can be fairly

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.”

In re Davenport, 147

F.3d 605, 611 (7th Cir. 1998)
The Seventh Circuit has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. First, he
must show that he relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on a decision that he
could not have invoked in his first §2255 motion and that case must apply
retroactively. Lastly, he must demonstrate that there has been a “fundamental
defect” in his conviction or sentence that is grave enough to be deemed a

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miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
See also, Brown v. Rios, 696 F3d 638, 640 (7th Cir. 2012).
Analysis
According to petitioner, he was convicted of violating 720 ILCS 570/401(c).
He argues that this conviction was improperly used to brand him as a career
offender because he could not have been sentenced to a term of imprisonment
exceeding one year for violation of that subsection. He bases this argument on the
language of that subsection, quoted in the memorandum attached to his original
petition:
Any person who violates this Section with regard to the following amounts
of controlled or counterfeit substances or controlled substance analogs,
notwithstanding any of the provisions of subsections (a), (b), (d), (e), (f),
(g) or (h) to the contrary, is guilty of a Class 1 felony. The fine for violation
of this subsection (c) shall not be more than $250,000: . . .
The subsection then goes on to list the amounts of various drugs to which it
applies. See, Doc. 1, Ex. 2, p. 6.
Jones interprets the above language to mean that he could only be fined,
and not imprisoned, for violating §570/401(c). There are two potential problems
with the substance of petitioner’s argument.

First, he was convicted in 1996.

This Court expresses no opinion as to whether the version of the statue quoted by
petitioner was in effect at the time of his conviction.

Further, as one would

expect, Illinois statutes define the phrase “Class 1 felony” in another section. The
current version, 730 ILCS 5/5-4.5-30 provides that, for a Class 1 felony, “The
sentence of imprisonment, other than for second degree murder, shall be a

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determinate sentence of not less than 4 years and not more than 15 years.” Thus,
petitioner’s argument that he was subject to a fine only, and not to imprisonment
for more than a year, is dubious, at best. However, this Court need not rule on
the merits of his argument, since he is precluded from bringing a §2241 petition.
Petitioner Jones cannot proceed by way of §2241 in this District because
his petition does not fit within the savings clause of 28 U.S.C. §2255(e). In order
to fit within the savings clause, the remedy provided by §2255 must be
“inadequate or ineffective to test the legality of his detention.”

Petitioner’s claim

that his Illinois drug conviction was not a felony is a claim that he could have
brought on direct appeal or in his §2255 motion.
In order to show that §2255 is inadequate, a petitioner must “first show
that the legal theory he advances relies on a change in law that both postdates his
first §2255 motion (for failure to raise a claim the first time around does not
render §2255 ‘inadequate’) and ‘eludes the permission in section 2255 for
successive motions.’” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003),
citing Davenport, 147 F.3d at 611.

Where the claim being advanced in the

§2241 petition could have been, or was, advanced in a prior §2255 motion, the
remedy offered by §2255 is not inadequate or ineffective. Taylor v. Gilkey, 314
F.3d 832, 835-836 (7th Cir. 2002); Davenport, 147 F.3d at 609.
In an attempt to show that his argument relies on a change in the law,
Jones cites Narvaez v. United States, 674 F.2d 621, 629-630 (7th Cir. 2011).
Narvaez addressed the application of U.S.S.G. §4B1.1, but not in a way that

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applies to petitioner’s claim.

§4B1.1 increases the sentencing range for a

defendant who has “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” Jones’ enhanced sentence was based
on prior felony convictions for controlled substance offenses.

Narvaez, in

contrast, concerns the question of what crimes count as violent felonies. The case
had nothing at all to do with the question presented here, i.e., whether a prior
conviction constitutes a felony for purposes of §4B1.1.
Jones also cites Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010),
and Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). Both of those cases concern
the issue of whether prior crimes qualify as aggravated felonies for purposes of
the Immigration and Nationality Act, 8 U.S.C. §1101, et seq.

Carachuri-

Rosendo, 130 S.Ct. at 2580. Moncrieffe, 133 S. Ct. at 1683-1684. Neither
case is relevant to petitioner’s argument.
Petitioner’s argument simply does not rely upon a new statutory
interpretation case. Rather, his argument is that, based on the wording of the
Illinois statute which he was (according to him) convicted of violating, he could
only have been sentenced to a fine, and to a term of imprisonment.

That

argument has been available to him all along, and could have been raised on
direct appeal or in his §2255 motion.

Jones also argues that a “certificate of

conviction” was never entered on the Illinois charge. Again, this argument does
not rely on a new cases decided after his §2255 motion.
Lastly, the Court notes that Jones argues that he is “actually innocent” of

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his sentence, citing Narvaez v. U.S., 674 F.3d 621 (7th Cir. 2011). He is correct
that, under current law, a “fundamental sentencing defect” can be addressed in a
§2241 petition. See, Brown v. Caraway, 719 F.3d 583, 587 (7th Cir. 2013).
However, this argument misses the mark. Brown still requires the petitioner to
meet all three of the Davenport requirements. Brown, 719 F.3d at 588. The
assertion that he is “actually innocent” of his sentence, as opposed to the crime of
which he was convicted, goes only to the third of the Davenport factors.
Petitioner’s insurmountable problem is that he cannot meet the first requirement
because his claim for habeas relief does not rely on a change in the law that
postdates his first §2255 motion.
Conclusion
Michael Everett Jones’ Petition for a Writ of Habeas Corpus Under 28
U.S.C. §2241 is DENIED, and this case is DISMISSED WITH PREJUDICE. The
Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
DATE: June 9, 2014.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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