Chaney v. James N. Cross, Warden

Filing 8

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS HEREBY ORDERED that respondent shall answer or otherwise plead within thirty days of the date this order is entered. Signed by Chief Judge David R. Herndon on 4/23/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARLTON LAMONT CHANEY,
#04860-028,
Petitioner,
vs.
JAMES CROSS, WARDEN,
Respondent.

Case No. 13-cv-223-DRH

MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
This matter is before the Court for preliminary review of the amended
petition for writ of habeas corpus under 28 U.S.C. § 2241 (Doc. 6), filed on March
26, 2013. The amended petition was filed by counsel in response to this Court’s
Order of March 21, 2013 (Doc. 5). Counsel has since filed a memorandum in
support of the § 2241 petition (Doc. 7).
Petitioner was found guilty by a jury in the Southern District of Indiana, of
armed robbery and carjacking while carrying and using a firearm. In a separate
jury trial, he was convicted of being a felon in possession of a firearm. He was
sentenced on March 5, 1998, to a term of 430 months (Doc. 6, p. 12; Doc. 7, p.
2). The convictions and sentence were affirmed on direct appeal. United States
v. Chaney, Case No. 98-1655, 165 F.3d 33 (Table) (7th Cir. Oct. 23, 1998).
Along with the prison term, petitioner was also ordered to pay restitution. Id.
Subsequent to his direct appeal, petitioner sought relief pursuant to 28
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U.S.C. § 2255, which included a challenge to the restitution order (Doc. 7, p. 2).
The matter was remanded to the district court, which held an evidentiary hearing
and ultimately denied relief. Petitioner attaches the court’s Entry denying motion
for relief of July 10, 2002, as Appendix A (Doc. 7-1, p. 2). Although petitioner’s
sentence was not altered, the court did correct its earlier determination in
paragraph 30 of the Presentence Investigation Report (“PSR”), stating that “the
obstruction of justice (fleeing law enforcement enhancement) enhancement
pursuant to USSG § 3C1.2, was not warranted by the circumstances of the
defendant’s offense of armed bank robbery” (Doc. 7-1, p. 2). Petitioner attaches
the referenced PSR paragraph 30 at Doc. 7-1, p. 4, which stated that petitioner
“recklessly created a substantial risk of serious bodily injury or death to Mrs.
Dauby” by crashing his vehicle into hers following the bank robbery. A portion of
petitioner’s restitution, in the amount of $10,028.57, was calculated for damage
to the “Dauby vehicle,” in paragraph 104 of the PSR (Doc. 7-1, p. 5).
In the instant habeas action, petitioner seeks an order vacating paragraph
104 of the PSR, and remanding the matter back to the Southern District of
Indiana for correction of the restitution order. He cites the recent Supreme Court
decision in Southern Union v. United States, 132 S. Ct. 2344 (2012), for the
proposition that the sentencing court improperly imposed restitution for the
Dauby vehicle. He argues that the facts on which the restitution was based were
never submitted to the jury, and the jury never found him responsible for the
vehicle damage. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held

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that any fact (other than a prior conviction) that increases a defendant’s sentence
must be submitted to, and found by, the jury.

Southern Union applied the

Apprendi rule to the imposition of criminal fines. Petitioner argues that this “new
rule” in Southern Union means that he is actually innocent of criminal liability for
the Dauby restitution, and that his claim should be cognizable in a § 2241 petition
because he could not have obtained relief under § 2255.
Disposition
Without commenting on the merits of petitioner’s claims, the Court
concludes that the amended petition survives preliminary review under Rule 4
and Rule 1(b) of the Rules Governing Section 2254 Cases in United States District
Courts. 1
The Clerk is DIRECTED to terminate respondent United States of America
as a party to the action, now that petitioner has named James N. Cross as the
respondent.
IT IS HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this order is entered. This preliminary order
to respond does not, of course, preclude the Government from raising any
objection or defense it may wish to present.

Service upon the United States

Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois, shall constitute sufficient service.

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas
corpus cases.
1

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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.
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2013.04.23
16:04:53 -05'00'

Signed this 23rd day of April, 2013.

Chief Judge
United States District Court

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