Price v. Cross

Filing 3

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. 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 8/28/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH JAMES PRICE, # 20549-424,
Petitioner,
vs.

Case No. 13-cv-809-DRH

JAMES N. CROSS,
Respondent.

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner, currently incarcerated in the Greenville Federal Correctional
Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the constitutionality of his seven-year mandatory minimum sentence for
“brandishing” a firearm during a bank robbery. The petition was filed on August
7, 2013.
Petitioner was convicted of three offenses, and sentence was imposed on
June 11, 2002 (Doc. 1, pp. 11-12). United States v. Price, Case No. 01-cr-771
(N.D. Ill.).

He was ordered to serve 262 months for armed bank robbery,

concurrent with a 120-month sentence for being a felon in possession of a
firearm. He was also given a seven-year sentence to be served consecutively to the
other sentences, for using a firearm in a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A).

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On May 16, 2003, the convictions and sentences were affirmed on appeal.
United States v. Price, 328 F.3d 958 (7th Cir. 2003).

Thereafter, petitioner

moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255,
without success (Doc. 1, pp. 8-9). United States v. Price, Case No. 04-cv-5415
(N.D. Ill.). In that motion, he raised the identical issue he now raises herein – that
neither the indictment nor his jury instructions charged that he “brandished” the
firearm during the robbery, stating only that he “used” it.

Under 18 U.S.C.

§ 924(c)(1)(A)(i), “use” of a firearm carries a penalty of only five years, but the
mandatory minimum is increased to seven years under § 924(c)(1)(A)(ii) if that
firearm is “brandished.”

The trial court rejected petitioner’s argument under

then-controlling Seventh Circuit precedent and pattern jury instructions, which
held that “use” included the act of “brandishing” a firearm (Doc. 1, p. 9).
Petitioner now argues herein that because the Supreme Court recently
overruled its prior precedent with regard to the interpretation of § 924(c)(1)(A), he
is “actually innocent” of the crime of “brandishing” a firearm. He should thus be
entitled to have his seven-year sentence vacated, so that he may be re-sentenced
subject to the five-year minimum only. See Alleyne v. United States, 133 S. Ct.
2151 (2013). In Alleyne, the Court held that under the Sixth Amendment and
pursuant to its earlier decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
any factor that increases the penalty for a crime (whether it increases the
statutory maximum or minimum) must be submitted to the jury and found
beyond a reasonable doubt. Accordingly, the Court overruled Harris v. United

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States, 536 U.S. 545 (2002), which had allowed a finding of fact by a judge to
increase a mandatory minimum sentence.

Alleyne was a direct appeal which

specifically challenged a seven-year sentence for “brandishing” a firearm under
§ 924(c)(1)(A), when the “brandishing” factor was found by the trial judge.
Petitioner argues that the Alleyne ruling should apply equally to his challenge
brought under § 2241.
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.
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
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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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.

Digitally signed by
David R. Herndon
Date: 2013.08.28
11:39:15 -05'00'

IT IS SO ORDERED.
DATED: August 28, 2013

Chief Judge
United States District Judge

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