Boyd v. Cross

Filing 5

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. 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 7/29/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIE E. BOYD, # 18498-044,
Petitioner,
v.

Case No. 13-cv-651-DRH

JAMES CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner, currently incarcerated in the Federal Correctional Institution at
Greenville, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the constitutionality of his confinement. The petition was filed on July
8, 2013. Petitioner was convicted in the Eastern District of Missouri in 1998, and
is serving a 276-month sentence for possession with intent to distribute cocaine,
possession of a firearm by a felon, identity theft, and filing a false currency
transaction report. (See Doc. 40-2, Boyd v. Cross, S.D. Ill. No. 10-cv-719-DRH).
Petitioner is not a newcomer to this Court, having filed several previous
habeas actions to challenge the armed career criminal enhancement to his
sentence. See Boyd v Revell, No. 05-cv-209; Boyd v. Revell, No. 06-cv-711; Boyd
v. Sherrod, No. 08-cv-598; and Boyd v. Cross, No. 10-cv-719.

Each of those

actions was dismissed. His most recent petition, however (Boyd v. Cross, No. 12-

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cv-733-DRH-DGW), survived preliminary review and is currently pending before
this Court.
Petitioner raises a new claim in the instant petition. He asserts that during
his prosecution, the government withheld evidence that would have called into
serious doubt the credibility of the witnesses against him. Their testimony bore
directly on the question of whether petitioner or some other person was the owner
of a gun and drugs found in the apartment of a third party, as well as another
firearm seized from a motel office where petitioner had been employed (Doc. 1,
pp. 9-13).

He argues that without their testimony, he would not have been

convicted. Petitioner has now obtained the evidence that was not turned over to
the defense during his trial, and argues that these documents would establish he
is actually innocent of the offenses for which he is now incarcerated.
Without commenting on the merits of petitioner’s claims, the Court
concludes that the petition survives preliminary review under Rule 4 and Rule
1(b) 1 of the Rules Governing Section 2254 Cases in United States District Courts.
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.
1

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other
habeas corpus cases.
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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.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven (7) days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2013.07.29
13:09:58 -05'00'

Signed this 29th day of July 2013.

Chief Judge
United States District Court

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