Chaney v. James N. Cross, Warden
Filing
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MEMORANDUM AND OPINION denying 6 Amended Petition for Writ of Habeas Corpus. The clerk of court shall enter judgment in favor of respondent. Signed by Magistrate Judge Clifford J. Proud on 3/18/2014. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARLTON LAMONT CHANEY,
)
)
)
)
)
)
)
)
Petitioner,
vs.
JAMES N. CROSS,
Respondent.
Case No. 13-cv-223-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
Through counsel, Carlton Lamont Chaney filed an Amended Petition Under
28 U.S.C. §2241 for Writ of Habeas Corpus. (Doc. 6). Petitioner also filed a
Memorandum in Support at Doc. 7. Respondent filed a response in opposition at
Doc. 11.
Petitioner raises only one claim, i.e., the judgment requiring him to pay
restitution in the amount of $10, 028.57, for damage to the vehicle of a witness, a
Ms. Dauby, was improper because the issue was not submitted to the jury.
Procedural History
Petitioner was convicted of a number of offenses in two separate trials in
the Southern District of Indiana, arising out of a bank robbery in 1997. Chaney
was charged with “armed bank robbery (count 1), carjacking (count 3), using and
carrying a firearm in relation to a bank robbery and carjacking (counts 2 and 4),
and two counts of unlawful possession of a firearm by a convicted felon (counts 5
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This case was referred to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 28.
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and 6).” U.S. v. Chaney, 1998 WL 789891, * 2 (7th Cir. 1998)(unpublished order
on direct appeal). His motion to sever the first four counts from the two firearm
counts was granted. Ibid. He was convicted of counts 1 through 4 in this first
trial, and of count 6 in his second trial. The Government dismissed count 5. He
was sentenced to a total of 430 months in prison, and ordered to pay restitution
in a total amount of $40, 299.76. Chaney, 1998 WL 789891, at * 3.
The involvement of Ms. Dauby (and her vehicle) was described by the
Seventh Circuit as follows:
The bank robbery was also witnessed by Donna Dauby, who was driving by
the bank in her pickup truck when she saw three masked men get out of a
Cadillac and run into the bank. She turned her truck around and parked,
watching the bank. When she saw the three robbers run out, she called 911
on her cellular telephone and followed their car onto Inland Drive, where it
pulled into a driveway. Dauby drove past and turned around, temporarily
losing sight of the robbers. As she came back into view of the Cadillac and
began watching it, a Chevrolet Suburban drove toward her, swerved around
the Cadillac and then drove directly at her, hitting and sideswiping the
truck along the length of the driver's side. Dauby drove away as fast as she
could. Shortly thereafter, the Suburban crashed into the back of a
residence. It was unoccupied by the time the police arrived, but police
found a black mask and a pink and white pillowcase with $16,890 in cash,
including the recorded bait money, in the passenger area. Also in the car
were an Indiana identification card for “Jesse James” with Carlton Chaney's
picture, and various car repair documents, some bearing the name “Troy
Smith.” Six fingerprints, later identified as Chaney's, were on the inside of
one of the Suburban's windows.
Chaney, 1998 WL 789891, at * 1.
Applicable Law
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
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limited to challenges regarding the execution of a sentence.
See, Valona v.
United States, 138 F.3d 693, 694 (7th Cir.1998).
A federally convicted person may challenge his conviction and sentence by
bringing a motion pursuant to 28 U.S. C. §2255 in the court which sentenced
him.
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). The statute limits a prisoner to 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
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
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as having been imprisoned for a nonexistent offense.”
In re Davenport, 147
F.3d 605, 611 (7th Cir. 1998)
Analysis
Citing Southern Union Company v. U.S., 132 S.Ct. 2344 (2012),
petitioner argues that the restitution order is unconstitutional because the facts
underlying the order were not found by a jury.
In Southern Union, the Supreme Court extended the rule of Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000), to criminal fines. Respondent argues that
Southern Union has no effect here. The Seventh Circuit has held that restitution
is a civil penalty, not a criminal punishment, to which Apprendi does not apply.
See, U.S. v. Bonner, 522 F.3d 804, 806-807 (7th Cir. 2008).
The Seventh
Circuit considered the issue again after Southern Union, and reaffirmed its view
that restitution is not a criminal penalty and is therefore not affected by Apprendi
or Southern Union. U.S. v. Wolfe, 701 F.3d 1206, 1216-1217 (7th Cir. 2012).
This Court need not rule on the substantive issue, however, as it is clear
that Chaney cannot bring his claim in a §2241 petition.
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 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
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defect” in his conviction or sentence that is grave enough to be deemed a
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).
Petitioner argues that he meets the Davenport conditions, but his
argument ignores the first requirement, that he rely on a new rule of statutory
construction. Southern Union is not a statutory interpretation case. Rather, it is
a constitutional case.
Southern Union is an extension of Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000). Both Apprendi and Southern Union were
decided on constitutional principles, i.e., the Sixth Amendment right to trial by
jury and the Fourteenth Amendment right to due process. Apprendi, 120 S. Ct.
at 2355-2356; Southern Union, 132 S. Ct. at 2349-2350.
Petitioner
recognizes in his memorandum in support that Southern Union is a
constitutional case. See, Doc. 7, pp. 5-6.
Chaney does not meet the first of the Davenport requirements and he
cannot bring his claim in a petition under §2241. “Because Congress may have
overlooked the possibility that new and retroactive statutory decisions could
support collateral review, we held in Davenport that for this small class of
situations § 2255 is ‘inadequate or ineffective to test the legality of [the]
detention.’” Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002). See also,
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013)(“First, the prisoner
must show that he relies on a ‘statutory-interpretation case,’ rather than a
‘constitutional case.’”)
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Conclusion
Carlton Lamont Chaney’s Amended Petition Under 28 U.S.C. §2241for Writ
of Habeas Corpus (Doc. 6) is DENIED.
This cause of action is DISMISSED
WITH PREJUDICE.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
DATE: March 18, 2014.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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