Fourstar v. Walton

Filing 5

ORDER DISMISSING CASE with prejudice, granting 2 MOTION for Leave to Proceed in forma pauperis filed by Victor C Fourstar, Jr. Signed by Chief Judge David R. Herndon on 11/25/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VICTOR C. FOURSTAR, JR.,
No. 07418-046,
Petitioner,
vs.

Case No. 13-cv-01122-DRH

JEFFREY S. WALTON,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
This case is before the Court on petitioner’s application for a writ of habeas
corpus, filed on October 31, 2013.
Introduction and Background
Petitioner Victor C. Fourstar, Jr., an inmate in the United States Prison at
Marion, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the enhanced sentence imposed after his 2002 conviction in the United
States District Court for the District of Montana (United States v. Fourstar, Case
No. 02–cr–52 (D.Mont. Oct. 30, 2002)). Petitioner was convicted of aggravated
sexual abuse, a violation of 18 U.S.C. § 2241(a). On February 27, 2003, he was
sentenced to 188 months in prison.

The conviction was affirmed on direct

appeal. United States v. Fourstar, 87 Fed.Appx. 62 (9th Cir. 2004) (addressing
only asserted trial errors).

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In 2005, petitioner unsuccessfully attacked his sentence pursuant to 28
U.S.C. § 2255. United States v. Fourstar, No. 02-cr-52, Docs. 130, 131 (D. Mont.
Dec. 20, 2005). The federal trial court’s most recent order indicates that Fourstar
has filed “at least” three successive petitions pursuant to 28 U.S.C. § 2255
attacking his sentence. United States v. Fourstar, No. 02-cr-52, Doc. 145, p. 2
(D. Mont. June 12, 2013).

By Order dated November 21, 2013, the Court of

Appeals for the Ninth Circuit denied a certificate of appealability relative to that
ruling dismissing Fourstar’s last Section 2255 petition. United States v.
Fourstar, No. DA 13-35601 (9th Cir. Nov. 21, 2013). 1
Fourstar now asserts that United States v. Booker, 543 U.S. 220 (2005),
and Begay v. United States, 553 U.S. 137 (2008), were unavailable at the time of
his original Section 2255 petition, and he is now entitled to use the “savings
clause” in Section 2255(e) to attack his sentence via Section 2241.

Fourstar

argues that he is “actually innocent” of a state offense that was used as a “crime of
violence” to enhance his federal sentence under Section 4B1.1 of the United States
Sentencing Guidelines (“U.S.S.G.”)—rendering him “actually innocent” of the
federal offense.
In an effort to upset that state conviction, on September 26, 2013, Fourstar
filed an appeal with the Supreme Court of Montana seeking leave to file a belated
appeal attacking his state conviction. Fourstar would have this Court remand his
federal case back to the district court in Montana, and have that district court
1

Fourstar has an extremely lengthy history of litigation in state court and federal courts. Only
cases relevant to the present petition are noted.

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exercise supplemental jurisdiction and upset the state case, all the while releasing
him on his own recognizance until he can be resentenced. In the alternative, he
requests that this action be stayed until he has exhausted his state court
remedies. (See Doc. 1, p. 8).
Discussion
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases. After carefully
reviewing the petition in the present case, the Court concludes that Petitioner is
not entitled to relief, and the petition must be dismissed.
Normally a person may challenge his federal conviction only by means of a
motion brought before the sentencing court pursuant to 28 U.S.C. § 2255, and
this remedy normally supersedes the writ of habeas corpus.

A Section 2241

petition 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 v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Federal prisoners may
utilize Section 2241, however, to challenge the legality of a conviction or sentence
in cases pursuant to the “savings clause” of Section 2255(e). 28 U.S.C. § 2255(e).
The savings clause allows a petitioner to bring a claim under Section 2241, where

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he can show that a remedy under Section 2255 is inadequate or ineffective to test
the legality of his detention. Id.; see also United States v. Prevatte, 300 F.3d
792, 798–99 (7th Cir. 2002).
The Court of Appeals for the Seventh Circuit has held that Section 2255 is
only inadequate or ineffective when three requirements are satisfied: (1) the
petitioner relies on a new case of statutory interpretation rather than a
constitutional decision; (2) the case was decided after his first Section 2255
motion but is retroactive; and (3) the alleged error results in a miscarriage of
justice. See Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); Brown v.
Rios, 696 F.3d 638, 640 (7th Cir. 2012). In Hill v. Werlinger, 695 F.3d 644, 648
(7th Cir. 2012), the Seventh Circuit reiterated, “ ‘Inadequate or ineffective’ means
that ‘a legal theory that could not have been presented under [Section] 2255
establishes the petitioner's actual innocence.’ ” Id. (citing Taylor v. Gilkey, 314
F.3d 832, 835 (7th Cir. 2002); In re Davenport, 147 F.3d 605, 608 (7th Cir.
1998)).
The United States District Court for the Northern District of Georgia
rejected a similar Section 2241 petition because Fourstar had not relied upon any
retroactive decision. Fourstar v. Keller, No. 12-cv-3671-CAP, Doc. 4 (N.D. Ga.
Nov. 13, 2012). He now cites United States v. Booker, 543 U.S. 220 (2005), and
Begay v. United States, 553 U.S. 137 (2008).
Booker rendered the Sentencing Guidelines advisory; consequently,
sentencing enhancements no longer have to be determined beyond a reasonable

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doubt because they can no longer alter the statutory maximum.
States v. Stokes, 726 F.3d 880, 898 (7th Cir. 2013).

See United

Begay pertains to the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), and holds that
whether a crime is a violent felony is determined by how the statutory offense is
defined and not how the offense was committed on a particular occasion. The
ACCA and the career offender provisions of U.S.S.G. § 4B1.1 (the basis for
Fourstar’s enhanced sentence) are “interpreted conterminously.” United States v.
Wyatt, 672 F.3d 519, 521 (7th Cir. 2012).

Thus, Fourstar’s petition actually

rests upon Begay.
Begay is a retroactive statutory interpretation case decided in 2008, well
after Fourstar’s initial Section 2255 petition was denied. See Brown v. Caraway,
719 F.3d 583, 586-87 (7th Cir. 2013). However, the savings clause also requires
that the sentencing defect be grave enough error to be deemed a miscarriage of
justice. This is the point where Fourstar’s argument fails. His petition to the
Supreme Court of Montana for leave to appeal (the first step in upsetting his state
conviction) was denied by order dated October 30, 2013—the day the current
petition was signed and mailed to this Court. State of Montana v Fourstar, No.
13-659 (Mont. Oct. 30, 2013). Therefore, his state conviction stands and any
argument that his federal sentencing enhancement is premised upon an invalid
conviction crumbles—there is no recognized fundamental defect. Because
Fourstar is no longer in custody on the state conviction at issue, and the Montana
Supreme Court’s order stated that any further reconsideration was barred,
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Fourstar is without recourse. See Daniels v. United States, 532 U.S. 374 (2001).
Consequently, this Section 2241 petition will be dismissed with prejudice.
Motion for Pauper Status
Petitioner has moved for leave to proceed in forma pauperis (Doc. 2).
Based on the financial information (using the six-month average daily balance)
provided with his motion, petitioner’s motion to proceed in forma pauperis (Doc.
2) will be granted.
Disposition
IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma
pauperis (Doc. 2) is GRANTED.
IT IS FURTHER ORDERED that the instant Section 2241 petition is
summarily DISMISSED with prejudice. The Clerk is DIRECTED to enter
judgment accordingly.
If petitioner wishes to appeal the dismissal of this action, he may file a
notice of appeal with this Court within thirty days of the entry of judgment. FED.
R.APP. P. 4(a)(4). A motion for leave to appeal in forma pauperis (“IFP”) should
set forth the issues petitioner plans to present on appeal. See FED. R. APP . P.
24(a)(1)(C). If petitioner does choose to appeal and is allowed to proceed IFP, he
will be liable for a portion of the $455.00 appellate filing fee (the amount to be
determined based on his prison trust fund account records for the past six
months) irrespective of the outcome of the appeal. See FED. R.APP. P. 3(e); 28
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U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725–26 (7th Cir.2008);
Sloan v. Lesza, 181 F.3d 857, 858–59 (7th Cir.1999); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir.1998). A timely motion filed pursuant to Federal Rule of
Civil Procedure 59(e) may toll the 30–day appeal deadline.
It is not necessary for petitioner to obtain a certificate of appealability.
Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir.2000).
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2013.11.25
10:27:32 -06'00'

November 25, 2013

Chief Judge
United States District Court

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