Akers v. Walton

Filing 7

ORDER DISMISSING CASE with prejudice, denying 2 MOTION for Leave to Proceed in forma pauperis filed by Montgomery Carl Akers. IT IS FURTHER ORDERED that, consistent with the order of the Court of Appeals for the Seventh Circuit, until Petition er has paid in full all outstanding fees in the district court and in the appellate court (which now includes the fee for this action and totals $1,725.00), the clerks of all federal courts in the circuit will return unfiled any papers submitted either directly or indirectly by or on behalf of Petitioner. The ban on filing does not apply to criminal cases or petitions challenging the terms of his confinement. Signed by Chief Judge David R. Herndon on 5/10/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MONTGOMERY CARL AKERS, 02866-081,
Petitioner,
vs.

NO. 13-cv-375-DRH

J. S. WALTON,
Respondent.

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
This matter is now before the Court on Petitioner’s writ of habeas corpus,
which he filed pursuant to 28 U.S.C. § 2241 on April 17, 2013. Petitioner seeks
to challenge his November 2006 conviction and sentence in the United States
District Court of Kansas, arguing that he was not indicted by a properly
authorized and constituted grand jury (Doc. 1, pp. 4, 8). See United States v.
Akers, Case No. 04-cr-20089 (D. Kan.). This is not the first time Petitioner has
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this
Court. 1

This is also not the first time Petitioner has claimed that he was

improperly indicted. 2

Consistent with this Court’s order dismissing Akers v.

1

Petitioner previously filed two petitions under 28 U.S.C. § 2241 in this Court,
both of which were denied. See Akers v. Hollingsworth, Case No. 11-cv-00103DRH (S.D. Ill. Feb. 7, 2011); see also Akers v. Roal-Werner, Case No. 12-cv01037-DRH (S.D. Ill. Sept. 27, 2012).
2
See Akers v. Roal-Werner, Case No. 12-cv-01037-DRH (S.D. Ill. Sept. 27, 2012).
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Roal-Werner 3 and for the reasons set forth herein, the petition shall be
DISMISSED.
Petitioner pled guilty to one count of wire fraud in the United States District
Court of Kansas. See United States v. Akers, Case No. 04-cr-20089 (D. Kan.). In
November 2006, he was sentenced to 327 months in prison (Id., Doc. 208).
Petitioner is currently serving his sentence in the Federal Correctional Institution
in Marion, Illinois.
In post-trial motions filed with the sentencing court, Petitioner raised
numerous challenges to his plea and conviction. The sentencing court rejected
these motions on the merits (Id., Docs. 201, 321). Petitioner’s conviction was
affirmed on appeal. United States v. Akers, 261 F. App’x 110 (10th Cir. 2008).
On April 29, 2009, Petitioner filed a motion under 28 U.S.C. § 2255 (“§
2255 motion”) to vacate, set aside, or correct sentence (United States v. Akers,
Case No. 04-cr-20089 (D. Kan.), Doc. 308).

In the § 2255 motion, Petitioner

claimed ineffective assistance of counsel and fraud on the court (Id.). He did not
raise the improper indictment claim in the motion. The United States District
Court of Kansas denied the § 2255 motion on its merits (Id., Doc. 321).
Petitioner subsequently filed two petitions under 28 U.S.C. § 2241 with this
Court, both of which were denied. Akers v. Hollingsworth, Case No. 11-cv-00103DRH (S.D. Ill. Feb. 7, 2011); Akers v. Roal-Werner, Case No. 12-cv-01037-DRH
(S.D. Ill. Sept. 27, 2012).

In one, Petitioner challenged his conviction and

sentence on multiple grounds, including his claim that he was improperly
3

See id., Doc. 9.
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indicted (Akers v. Roal-Werner, Case No. 12-cv-01037-DRH (S.D. Ill. Sept. 27,
2012), Doc. 1, p. 8).

This Court dismissed the petition on the merits with

prejudice. Petitioner appealed the decision, and the Court of Appeals affirmed.
Akers v. Roal-Warner, Case No. 12-3485 (7th Cir. 2013).
In the instant petition, Petitioner again challenges his federal conviction and
sentence (Doc. 1). Petitioner again claims that he was not properly indicted (Doc.
1, pp. 4, 8). Petitioner also contends that the Court never reached the merits of
this particular claim in his previous actions (Doc. 1, p. 3).
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. §
2241 when challenging the fact or duration of confinement. Preiser v. Rodriguez,
411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir.
1994). The writ of habeas corpus may be granted where a petitioner is in custody
in violation of the Constitution or laws or treaties of the United States. 28 U.S.C.
§ 2241(c)(3).

In this present petition, Petitioner does not challenge the

circumstances of his confinement.

Rather, he challenges the validity of his

conviction and sentence. Despite his attempt to cast his pleading as a § 2241
claim, the petition clearly involves a collateral attack on his federal sentence.
Ordinarily, a person may challenge his federal conviction only by means of
a § 2255 motion brought before the sentencing court, and this remedy typically
supersedes the writ of habeas corpus. A petition filed under 28 U.S.C. § 2241 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

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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 Waletski, 13 F.3d at
1080 (A “prisoner who challenges his federal conviction or sentence cannot use
[§ 2241] at all but instead must proceed under 28 U.S.C. § 2255.”).
Petitioner previously pursued relief under 28 U.S.C. § 2255. He failed to
raise this claim in his § 2255 motion. He is now barred from pursuing further
relief under that section, unless he first obtains permission from the Court of
Appeals to bring a second or successive motion or his case presents one of the few
circumstances in which petitioners may seek collateral relief under 28 U.S.C. §
2241. Gray-Bey v. United States, 209 F.3d 986, 988-90 (7th Cir. 2000); In re
Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998).
The fact that Petitioner may be barred from bringing a second § 2255
petition is not, in itself, sufficient to render it an inadequate remedy.

In re

Davenport, 147 F.3d at 609-10 (§ 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 held that a federal prisoner
should be permitted to seek collateral relief under § 2241 “only if he had no
reasonable opportunity to obtain earlier judicial correction of a fundamental
defect in his conviction or sentence because the law changed after his first 2255
motion.” 147 F.3d at 611. To be allowed to proceed, three additional conditions
must also be met: (1) the change of law has to have been made retroactively by the

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Supreme Court; (2) it must be a change that eludes the permission in section
2255 for successive motions; and (3) “change in law” is not to be equated to a
difference between the law in the circuit in which the prisoner was sentenced and
the law in the circuit in which he is incarcerated.” Id. at 611-12.
Petitioner has provided no explanation as to why he had no opportunity to
raise this claim in his § 2255 motion. In addition, Petitioner clearly fails the first
prong of In re Davenport, as he does not identify any change in the law, much less
any retroactive change as the basis for his claim. It appears that § 2255 was
neither inadequate nor ineffective to test the validity of Petitioner’s conviction and
sentence.

Consistent with In re Davenport, Petitioner cannot raise this claim

through a § 2241 petition and thereby avoid the procedural limitations and
requirements attendant to § 2255 motions. Davenport, 147 F.3d 605 (7th Cir.
1998). It is also not appropriate to raise the issue in successive § 2241 petitions.
Accordingly, the petition shall be dismissed with prejudice.
Pending Motions
Petitioner has moved for leave to proceed in forma pauperis (“IFP”) in this
matter, asserting that he is unable to pay the $5.00 habeas filing fee (Doc. 2). He
has also submitted his prison trust fund statement showing he has a negative
balance (Docs. 5-6). However, Petitioner’s pleadings in other actions he has filed
in this Court indicate that he possesses bank funds and other property in an
undetermined amount and reveal that he possesses financial resources adequate
to retain legal counsel and manage his property interests (See e.g., Akers v. Roal,

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Case No. 11-cv-622 (S.D. Ill. July 20, 2011), Doc. 2, p. 2). Further, Petitioner is
now subject to an order by the Seventh Circuit that any documents he submits for
filing in a civil case shall be returned to him unfiled until he pays all outstanding
fees (Doc. 38 in S.D. Ill. Case No. 11-cv-622-MJR, Aug. 13, 2012; Doc. 14 in
Appeal No. 11-3268, April 24, 2012). The total amount of fees that Petitioner
owes this Court is $1,720.00 and he has yet to pay anything toward this amount.
While the filing ban does not extend to habeas actions such as the instant
case, Petitioner’s exhibits as well as the record in Case Nos. 12-cv-1037 and 11cv-622 indicate that granting him leave to proceed IFP in this matter is not
appropriate. Therefore, Petitioner’s motion for leave to proceed IFP (Doc. 2) is
DENIED.

Disposition
IT IS HEREBY ORDERED that this action is summarily DISMISSED on
the merits with prejudice.
IT IS FURTHER ORDERED that, consistent with the order of the Court of
Appeals for the Seventh Circuit, until Petitioner has paid in full all outstanding
fees in the district court and in the appellate court (which now includes the fee for
this action and totals $1,725.00), the clerks of all federal courts in the circuit will
return unfiled any papers submitted either directly or indirectly by or on behalf of

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Petitioner.

The ban on filing does not apply to criminal cases or petitions

challenging the terms of his confinement.
IT IS SO ORDERED.
Signed this 10th day of May, 2013.

Digitally signed by
David R. Herndon
Date: 2013.05.10
15:22:33 -05'00'
Chief Judge
United States District Court

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