Spencer v. Cross

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Chief Judge David R. Herndon on 2/10/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTWOYN TERRELL
SPENCER, # 14781-041,
Petitioner,
vs.

Case No. 14-cv-00056-DRH

JAMES N. CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner, who is currently incarcerated in the Greenville Federal
Correctional Institution (“Greenville”), brings this habeas corpus action pursuant
to 28 U.S.C. § 2241 to challenge the constitutionality of his conviction.
petition was filed on January 16, 2014.

The

Petitioner filed a virtually identical

petition with this Court on November 4, 2013, and it was dismissed with
prejudice on November 27, 2013. See Spencer v. Cross, No. 13-cv-1133-DRH
(S.D. Ill. 2013) (Docs. 1, 3).

Like the one before it, this petition shall be

DISMISSED.
Background
Following a jury trial in the District of Minnesota, petitioner was convicted
of conspiracy to distribute cocaine and crack, attempted possession with intent to
distribute, and money laundering. United States v. Spencer, Case No. 07-cr-174
(D. Minn.). Petitioner was sentenced to 324 months on January 10, 2009 (Doc. 1,

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p. 3). In his direct appeal, he argued, among other things, that two of his jury
instructions (Nos. 20 and 21) were improper (Doc. 333, criminal case). He also
argued that he was entitled to a new trial because of a remark made by his codefendant’s attorney during opening statements, which suggested that petitioner
was “hiding behind the Fifth Amendment” by choosing not to testify (Id.). The
Eighth Circuit affirmed the conviction and sentence.
Petitioner timely filed a motion under 28 U.S.C. § 2255 to vacate, set aside,
or correct his sentence.

Spencer v. United States, Case No. 10-cv-1803 (D.

Minn.). The government was ordered to respond, and his motion was denied on
April 15, 2011. He appealed, but was denied a certificate of appealability by the
Eighth Circuit. Spencer v. United States, Appeal No. 11-2319 (8th Cir. Oct. 25,
2011).
The Habeas Petition
In the instant case, petitioner raises four grounds for relief.

First, he

claims that he was denied due process of law under 28 U.S.C. § 2243 (Doc. 1, p.
6).

Second, he claims that Jury Instruction No. 20 lowered the government’s

burden of proof on the conspiracy charge by stating that the prosecution had only
to prove an agreement to distribute either cocaine or crack, instead of both
drugs. 1 Third, he claims that Jury Instruction No. 21 constructively amended the
indictment by instructing that on the conspiracy charge, a defendant must have

1

Petitioner raised this same argument in his prior § 2241 petition. See Spencer, No. 13-cv-1133DRH (Docs. 1, p. 6).
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conspired with any other person. 2 He argues that the instruction should have
required the jury to find that the defendants conspired with one another (Doc. 1,
p. 6). Finally, he claims that his Fifth Amendment rights were violated at trial
when co-defense counsel remarked in his opening statement that his client was
“not hiding behind the Fifth Amendment” by choosing not to testify, to suggest
that Petitioner was (Doc. 1, p. 7) (Doc. 33, criminal case).
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 this petition, like the last, must be dismissed.
The Court articulated the applicable legal standard in its dismissal order in
petitioner’s prior habeas case. See Spencer, No. 13-cv-1133-DRH (Doc. 3, pp. 34).

It has not changed. 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

2

Petitioner also raised this same argument in his prior § 2241 petition. See Spencer, No. 13-cv1133-DRH (Docs. 1, p. 6).
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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 § 2241, however, to challenge the legality of a conviction or sentence in
cases pursuant to the “savings clause” of § 2255(e). See 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

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crime under the statutes (as correctly understood).” Kramer v. Olson, 347 F.3d
214, 218 (7th Cir. 2003).
The Court is not persuaded that the § 2255 remedy is inadequate or
ineffective to test the legality of Petitioner’s detention. Petitioner does not suggest
that the charged conduct is no longer a crime. Instead, he recycles two arguments
that this Court already rejected less than three months ago and the appellate
court also rejected in his direct appeal. These arguments include Grounds 2 and
3 in the present petition, addressing Jury Instruction Nos. 20 and 21 (Doc. 1, p.
6). Petitioner is foreclosed from raising these arguments again.
He also challenges the opening statement made by his co-defendant’s
attorney at trial. However, petitioner unsuccessfully raised this argument in his
direct appeal. Finally, petitioner argues, for the first time, that he was deprived of
due process of law under 28 U.S.C. § 2243, but provides no support for this
argument.

These claims provide no basis for relief in this § 2241 habeas

proceeding. Accordingly, the petition shall be dismissed with prejudice.
Sanctions
Twice in three months, this Court has ruled on virtually the same petition
filed by petitioner. Both petitions were frivolous. Petitioner stands warned that
he will be sanctioned for future frivolous filings, consistent with Alexander v.
United States, 121 F.3d 312, 315 (7th Cir. 1997). In Alexander, 121 F.3d at
315-16, the Seventh Circuit imposed a monetary sanction as well as an order that
future filings by the petitioner would be deemed denied on the thirtieth day unless

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the Court entered an order to the contrary. The Seventh Circuit relied on the
principle that courts have “inherent powers to protect themselves from vexatious
litigation.”

Id. at 316 (citing Chambers v. NASCO, Inc., 501 U.S. 32 (1991)).

Alexander involved a prisoner’s repetitive and redundant applications to the
Seventh Circuit for leave to file a successive § 2255 action. Like that prisoner,
petitioner will be subject to sanctions if he continues to file claims that are clearly
foreclosed or frivolous.
Disposition
To summarize, petitioner has not demonstrated that § 2255 is an
inadequate remedy for his current claims, and 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).
A motion for leave to appeal in forma pauperis 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 $505.00 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,

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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.

Digitally signed by
David R. Herndon
Date: 2014.02.10
10:39:28 -06'00'

IT IS SO ORDERED.
DATED: February 10, 2014

Chief Judge
United States District Court

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