Chaney v. James N. Cross, Warden

Filing 46

ORDER denying 40 Motion for Reconsideration. Signed by Magistrate Judge Clifford J. Proud on 4/24/2014. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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CARLTON LAMONT CHANEY,
Petitioner,
vs.

JAMES N. CROSS,
Respondent.

Civil No. 13-cv-223-CJP 1

ORDER
PROUD, Magistrate Judge:
Before the Court is Petitioner’s Motion to Reconsider Pursuant to
Fed.R.Civ.P 59(e). (Doc. 40). Respondent filed a response at Doc. 41.
Through counsel, Carlton Lamont Chaney filed a petition for writ of habeas
corpus under 28 U.S.C. §2241. Counsel filed the instant motion, and was later
granted leave to withdraw. See, Doc. 44.
Chaney’s Amended Petition and Memorandum in Support are located at
Docs. 6 & 7. Despite the fact that it was filed by counsel, the Amended Petition is
barely intelligible. The sole ground presented in the Petition is “Since the vacatur
of described conduct in paragraph 30 in pre-sentence report in the district court’s
July 10, 2002, Order, the $10,028.57 restitution Order is not-withstanding in
paragraph 104 in the PSR.” The supporting facts are described as “There was no
evidence presented at trial to show petitioner there-in created a substantial risk or

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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. 28.

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[sic] injury to another person pursuant to 3C1.2 enhancement.” Doc. 6, p. 7.
In the first section of the Memorandum in Support, entitled “Parties and
Issue Presented,” the issue presented is described as follows:
Petitioner brings this action, pursuant to 28 U.S.C. §2241to assert
that, based upon the recent Supreme Court Opinion in Southern
Union v. United States, 132 S.Ct. 2344 (2012) (decided June 21,
2012), neither the sentencing enhancement factors used by the Court
nor the substantial restitution ordered by the Court were based upon
facts found by the jury and, therefore, cannot stand. He seeks an
order of this Court remanding the case to the District Court for the
Southern District of Indiana for resentencing under the restrictions
set out in Southern Union, supra.
Doc. 7, p. 1, emphasis in original.
Southern Union v. United States is cited in the Memorandum seven
more times. See, Doc. 7, pp. 4, 5, 6, 7 & 10.
In the second section of the Memorandum, petitioner argues that:
In light of the decision in Southern Union, supra, Mr. Chaney now
asserts that the District Court’s imposition of restitution in excess of
$10,028.57 for Mr. Chaney’s alleged obstruction of justice involving
a crash with a vehicle belonging to Mrs. Dauby was never found by a
jury beyond a reasonable doubt. That factual finding, therefore, was
and is unconstitutional under Apprendi v. New Jersey, 530 U.S.
466 (2000) as is now recognized in Southern Union, supra.
Doc. 7, p. 6, emphasis in original.
In the third section of the Memorandum, petitioner argues that his claim is
properly brought in a §2241 petition because he meets the criteria of In re
Davenport, 147 F. 3d 605 (7th Cir. 1998). Doc. 7, pp. 9-14.
In its Memorandum and Order denying the petition, this Court observed
that Southern Union concerned criminal fines, and the Seventh Circuit has held
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that restitution is a civil penalty, not a criminal punishment, to which neither
Southern Union nor Apprendi apply.

The Seventh Circuit again took that

position in a nonprecedential order issued yesterday in United States v. Walter
Holmich, No. 12-3792, slip op. at 3-4 (7th Cir. April 23, 2014). This Court went
on to hold that Chaney could not bring his claim in a §2241 petition because he
could not meet the first of the Davenport criteria, i.e., that he relies 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 23552356; Southern Union, 132 S. Ct. at 2349-2350.
Doc. 38, p. 5, emphasis in original.
Rule 59(e) motions serve a narrow purpose and must clearly establish
either a manifest error of law or fact, or must present newly discovered evidence.
Moro v. Shell Oil Company, 91 F.3d 872, 876 (7th Cir. 1996). The Court has
quoted at length from petitioner’s Memorandum in Support because he now
argues that the Court patently misunderstood the scope of his argument for
habeas relief.
Petitioner’s argument is surprising, to say the least.

Despite the clear

statements in the Memorandum in Support, he now argues that “the absence of a
jury finding . . . has nothing to do with his claim for relief from this Court.”
Further, he now agrees that Southern Union “does not apply to orders of
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restitution.” Doc. 40, p. 7. He also argues that Davenport has no relevance,
despite the fact that he argued in his Memorandum that Davenport permits him
to bring his claim in a §2241 petition.
The arguments advanced in petitioner’s Rule 59(e) motion are frivolous.
Accordingly, Petitioner’s Motion to Reconsider Pursuant to Fed.R.Civ.P 59(e)
(Doc. 40) is DENIED.
IT IS SO ORDERED.
DATE: April 24, 2014.

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

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