Lott v. Walton
Filing
17
MEMORANDUM AND OPINION re Petition for Writ of Habeas Corpus filed by Gary Allen Lott. Signed by Magistrate Judge Clifford J. Proud on 1/3/2014. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
)
)
)
)
)
)
GARY ALLEN LOTT,
Petitioner,
vs.
J. S. WALTON
Respondent.
Civil No. 13-cv-833-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
Gary Allen Lott filed a petition for writ of habeas corpus under 28 U.S.C.
§2241. (Doc. 1).
In 1999, a jury in the Western District of Oklahoma convicted
him of a number of crimes in connection with a conspiracy to manufacture and
distribute methamphetamine.
He was sentenced to two concurrent life terms,
along with some lesser sentences. U.S. v. Lott, 310 F.3d 1231, 1237 (10th Cir.
2002)(direct appeal).
Relying on Alleyne v. United States, 133 S.Ct. 2151 (2013), Lott argues
that his “mandatory-minimum life sentence” was improper because the jury did
not make factual findings as to drug amounts or any other mandatory-minimum
triggering facts.
Doc. 1, p. 1. Respondent argues that Alleyne does not serve to
permit Lott to bring a §2241 petition.
1
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. 16.
1
Relevant Facts
Gary Allen Lott was indicted along with his brother and other relatives on
charges arising out of “a methamphetamine manufacturing and distribution
operation operated out of three residences in the Oklahoma City area” Lott, 310
F.3d at 1235.
In Count 1, petitioner was charged with conspiracy to
manufacture and distribute methamphetamine in violation of 21 U.S.C. §
841(a)(1). Counts 6, 7, and 8 charged him with maintaining a residence for the
purpose of manufacturing methamphetamine in violation of 21 U.S.C. § 856(a)(1).
Count 10 charged him with possession of listed chemicals with intent to
manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). Count 11
charged him with attempting to manufacture methamphetamine in violation of 21
U.S.C. § 846. Count 12 charged him with knowingly carrying and possessing a
firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C.
§924(c)(1). Lott was convicted on all counts. He was sentenced to concurrent life
sentences on Counts 1 and 11 under 21 U.S.C. §841(b)(1)(A) based on the judge’s
findings as to drug amounts.
He was also sentenced to 240 months each on
Counts 6,7,8 and 10, to run concurrently to his life terms, and to 60 months on
Count 12, to be served consecutively. Lott, 310 F.3d at 1237.
On direct appeal, among other claims, he argued that his life sentences on
Counts 1 and 11 violated Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
The Tenth Circuit conducted a plain error review of whether it was erroneous to
sentence Lott under §841(b)(1)(A).
The government conceded that “imposing
2
sentences in excess of twenty years on counts where drug quantity was omitted
from the indictment (Count 11) or where the jury was not instructed that it must
find drug quantity beyond a reasonable doubt (Counts 1, 2, 3, 4, and 11)
constitutes ‘error’ that is ‘plain.’” However, the Tenth Circuit found that the error
was not prejudicial “because [his] total length of imprisonment would not have
been shorter even if [he] were properly sentenced under § 841(b)(1)(C), due to the
mandatory ‘stacking’ requirement of § 5G1.2(d) of the United States Sentencing
Guidelines.” Lott, 310 F.3d at 1241-1242.
Lott filed a motion to vacate, set aside or correct his sentence under 28
U.S.C. §2255 in the Western District of Oklahoma, raising various claims of
ineffective assistance of counsel. His request for a certificate of appealability was
denied. U.S. v. Lott, 271 Fed.Appx. 728 (10th Cir. 2008).
There is no indication in the record that Lott sought leave to file a second
or successive §2255 motion pursuant to 28 U.S.C. §2255(h).
Applicable Legal Standards
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may
not be used to raise claims of legal error in conviction or sentencing, but are
limited to challenges regarding the execution of a sentence.
See, Valona v.
United States, 138 F.3d 693, 694 (7th Cir.1998).
A federally convicted person may challenge his conviction and sentence by
bringing a motion pursuant to 28 U.S. C. §2255 in the court which sentenced
him.
Indeed, a §2255 motion is ordinarily the “exclusive means for a federal
3
prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th
Cir. 2003). The statute limits a prisoner to one challenge of his conviction and
sentence under §2255. A prisoner may not file a “second or successive” motion
unless a panel of the appropriate court of appeals certifies that such motion
contains either 1) newly discovered evidence “sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the movant
guilty of the offense,” or 2) “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable.”
28 U.S.C. § 2255(h).
It is possible, under very limited circumstances, for a prisoner to challenge
his federal conviction or sentence under §2241. 28 U.S.C. §2255(e) contains a
“savings clause” which authorizes a federal prisoner to file a §2241 petition where
the remedy under §2255 is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). See, United States v. Prevatte, 300 F.3d 792,
798–99 (7th Cir.2002).
“A procedure for postconviction relief can be fairly
termed inadequate when it is so configured as to deny a convicted defendant any
opportunity for judicial rectification of so fundamental a defect in his conviction
as having been imprisoned for a nonexistent offense.”
In re Davenport, 147
F.3d 605, 611 (7th Cir. 1998)
The Seventh Circuit has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. First, he
must show that he relies on a statutory interpretation case rather than a
4
constitutional case. Secondly, he must show that he relies on a decision that he
could not have invoked in his first §2255 motion and that case must apply
retroactively. Lastly, he must demonstrate that there has been a “fundamental
defect” in his conviction or sentence that is grave enough to be deemed a
miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
See also, Brown v. Rios, 696 F3d 638, 640 (7th Cir. 2012).
Analysis
The Court first notes that Lott characterizes his life sentences as
“mandatory-minimum.” This is incorrect. Lott was sentenced under 21 U.S.C.
§841(b)(1)(A), which authorizes a term of 10 years to life imprisonment. Lott,
310 F.3d at 1239. Arguably, Alleyne has no impact on his sentence and the
claim he is making here is simply a restatement of his previously-rejected
Apprendi claim. This Court need not make that determination, however, as it is
clear that Lott’s petition does not fit within the savings clause of §2255(e) and
must be dismissed.
As respondent correctly argues, Alleyne is not a statutory interpretation
case.
Rather, it is a constitutional case.
“Alleyne establishes a new rule of
constitutional law.” Simpson v. U.S., 721 F.3d 875, 876 (7th Cir. 2013),
Alleyne is an extension of Apprendi v. New Jersey, 120 S. Ct. 2348
(2000). Both Apprendi and Alleyne 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 2355-2356; Alleyne, 133 S. Ct.
5
at 2156. The cases are not based on statutory construction.
Because Alleyne is a constitutional case, not a statutory interpretation
case, Lott does not meet the first of the Davenport requirements and he cannot
bring his claim in a petition under §2241.
“Because Congress may have
overlooked the possibility that new and retroactive statutory decisions could
support collateral review, we held in Davenport that for this small class of
situations § 2255 is ‘inadequate or ineffective to test the legality of [the]
detention.’” Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002).
See also,
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013)(“ First, the prisoner
must show that he relies on a ‘statutory-interpretation case,’ rather than a
‘constitutional case.’”)
Respondent also argues that Alleyne does not apply retroactively to cases
on collateral review. Respondent cites Simpson v. U.S., 721 F.3d 875 (7th Cir.
2013), for the proposition that Alleyne has not been made retroactive by the
Supreme Court, correctly noting that Simpson was decided in the context of a
request for leave to file a successive §2255 motion under 2255(h)(2). Simpson,
721 F.3d at 876.
Alleyne is an extension of Apprendi v. New Jersey, 120 S.
Ct. 2348 (2000), and the Supreme Court has not applied other rules based on
Apprendi retroactively to cases on collateral review. Simpson, 721 F.3d at 876.
For purposes of a Davenport analysis, it is questionable whether the
declaration of retroactivity must be made by the Supreme Court. Davenport said
that it did. Davenport, 147 F.3d at 611.
6
However, the Seventh Circuit has
backed away from that statement somewhat. In U.S. v. Prevatte, 300 F.3d 792
(7th Cir. 2002), the Court explained that the scope of the requirement of a
Supreme Court declaration of retroactivity is uncertain:
Even in this circuit, the scope of this requirement is uncertain; in other
circuits, statutory cases such as this one have been treated as not involving
a retroactivity issue. Rather, the courts have taken the view that a decision
of the Supreme Court that gives a federal criminal statute a narrower
reading than it previously had been given necessarily raises the possibility
that an individual previously convicted under the broader reading now
stands convicted of activity that Congress never intended to make criminal.
Prevatte, 300 F.3d at 800-801.
The Court has considered Lott’s reply, Doc. 12, in which he argues that
Alleyne is a watershed ruling that should be applied retroactively. In this case,
however, it is not necessary to undertake the retroactivity analysis.
Lott’s
insurmountable problem is that Alleyne is not a statutory construction case. Lott
can only challenge his sentence in a §2241 petition if he can meet the Davenport
requirements, and the first requirement is reliance on a statutory construction
case. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012).
Conclusion
Lott does not meet the Davenport criteria for challenging his sentence via
§2241. Therefore, his §2241 petition is DISMISSED WITH PREJUDICE. The
Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.
DATE: January 3, 2014.
7
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?