Young v. Cross

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Chief Judge David R. Herndon on 1/13/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD YOUNG, 50081-066,
Petitioner,
vs.
JAMES CROSS,
Respondent.

Case No. 13-cv-1286-DRH
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
This case is before the Court on petitioner’s writ of habeas corpus, which
he filed on December 13, 2013.

Petitioner, who is an inmate in the Federal

Correctional Institution in Greenville, Illinois (“Greenville”), brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge his conviction entered by
the United States District Court for the Eastern District of Pennsylvania (Doc. 1).
See United States v. Ramirez, et al., Case No. 05-cr-307 (E.D. Pa. 2005). For
the reasons set forth below, the petition must be DISMISSED.
BACKGROUND
Following a jury trial on June 8, 2006, petitioner was found guilty of: (1)
conspiracy to distribute 500 grams or more of cocaine and 100 grams or more of
heroin, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)
(Count 2), and; (3) possession with intent to distribute 100 grams or more of
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
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United States v.

Ramirez, et al., Case No. 05-cr-00307 (E.D. Pa. 2005) (Doc. 147). Judgment was
entered on April 24, 2008 (Id., Doc. 246).

Petitioner was sentenced to 270

months of imprisonment, along with 5 years of supervised release and a $300.00
special assessment (Id.).
After filing several post-trial motions, petitioner filed a motion under 28
U.S.C. § 2255 to vacate, set aside, or correct his conviction on November 15,
2010 1 (Id., Doc. 269).

Petitioner sought relief on seven grounds, which were all

based on the ineffective assistance of his counsel, by arguing that: (1) trial counsel
failed to object to allegedly prejudicial testimony under Federal Rule of Evidence
404(b); (2) appellate counsel failed to challenge a perceived lack of curative
instructions related to allegedly prejudicial evidence; (3) trial counsel failed to
make a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29 at
the close of the Government’s case-in-chief and after the jury’s verdict was
submitted; (4) trial counsel failed to challenge the sufficiency of a search warrant
that law enforcement executed concurrently with his arrest; (5) trial counsel failed
to properly object to a Government witness’ testimony about petitioner’s
handwriting; (6) trial counsel failed to properly object to the authentication of
crime lab reports; and (7) sentencing counsel failed to challenge an upward
adjustment in the calculation of his base offense level pursuant to U.S.S.G. §
3B1.1 (Id., Doc. 287, pp. 2-3). The government was ordered to respond. The
petition was dismissed as frivolous on January 20, 2012 (Id., Doc. 288).
1

Petitioner originally filed the motion on October 20, 2010, using the wrong form (Id.,
Doc. 266). The District Court directed him to re-file it on a standard form within thirty
days, which petitioner did (Id., Docs. 268-69).
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HABEAS PETITION
In the instant matter, petitioner sets forth two grounds for relief. First, he
claims that the District Court erred when it dismissed his § 2255 petition without
first holding an evidentiary hearing pursuant to 28 U.S.C. § 2255(b) (Doc. 1, pp.
6, 10-12). Second, he claims that failure to hold the evidentiary hearing resulted
in a denial of his due process rights (Id.). Petitioner now seeks reconsideration of
his habeas petition (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.
Ordinarily, 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 § 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 §

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2241, however, to challenge the legality of a conviction or sentence in cases
pursuant to the “savings clause” of § 2255(e). 28 U.S.C. § 2255(e). The savings
clause allows a petitioner to bring a claim under § 2241, where he can show that a
remedy under § 2255 is inadequate or ineffective to test the legality of his
detention. Id.; see United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir.
2002). The fact that a 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 605, 609-10 (7th Cir. 1998) (§ 2255 limitation on filing
successive motions does not render it an inadequate remedy for a prisoner who
had filed a prior § 2255 motion).

Instead, a petitioner under § 2241 must

demonstrate the inability of a § 2255 motion to cure the defect in the conviction.
The Seventh Circuit recently reiterated the rule that a § 2241 petition can
only be used to attack a conviction or sentence when the § 2255 remedy “is
inadequate or ineffective to test the legality of [the prisoner’s] detention.” Hill v.
Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (internal citations omitted).
“‘Inadequate or ineffective’ means that ‘a legal theory that could not have been
presented under § 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 at
608). Actual innocence is established when a petitioner can “admit everything
charged in [the] indictment, but the conduct no longer amount[s] to a crime under
the statutes (as correctly understood).” Kramer v. Olson, 347 F.3d 214, 218 (7th
Cir. 2003).

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In the present case, petitioner does not suggest that the charged conduct is
no longer a crime. Instead, he attacks the trial court’s handling of his § 2255
motion, arguing that he has been denied due process of law because the District
Court failed to hold an evidentiary hearing before issuing a decision on his
petition. This claim provides no basis for relief in this proceeding.
This Court does not see any error in the trial court’s determination that,
after receiving the government’s reply, it could rule on petitioner’s § 2255 motion
without an evidentiary hearing. More to the point, the proper forum to raise any
such alleged error is in petitioner’s appeal of the dismissal of his § 2255 action.
This claim does not involve any structural defect in the § 2255 procedure;
therefore, it cannot be addressed under § 2241.

A § 2255 proceeding will be

considered inadequate only if prior binding precedent foreclosed petitioner from
bringing the argument in a § 2255 motion. Hill v. Werlinger, 695 F.3d at 648-49
(citing Morales v. Bezy, 499 F.3d 668 (7th Cir. 2007). That is not the case here.
Therefore, petitioner cannot use § 2241 as a vehicle for bringing his claims.
DISPOSITION
Petitioner has not demonstrated that § 2255 is an inadequate remedy for
his current claims. Consistent with In re Davenport, petitioner cannot raise these
claims through a § 2241 petition.

Davenport, 147 F.3d 605 (7th Cir. 1998).

Accordingly, the petition is summarily DISMISSED with prejudice.
If petitioner wishes to appeal this dismissal, 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).

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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
required to pay a portion of the $455.00 appellate filing fee in order to pursue his
appeal (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 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).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
th

Signed this 13 day of January, 2014.
Chief Judge
U.S. District Court

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Digitally signed by
David R. Herndon
Date: 2014.01.13
13:06:57 -06'00'