Marks v. Cross
Filing
3
IT IS HEREBY ORDERED that the petition is DISMISSED without prejudice. IT IS FURTHER ORDERED that on or before March 19, 2014, petitioner Marks shall file an amended Section 2241 petition. If an amended petition is not filed by the prescribed deadline, this action will be dismissed with prejudice and final judgment will enter accordingly. (Amended Pleadings due by 3/19/2014). Signed by Chief Judge David R. Herndon on 2/19/2014. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES D. MARKS,
No. 06023-033,
Petitioner,
vs.
JAMES N. CROSS,
Respondent.
Case No. 14-cv-00099-DRH
MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner James D. Marks is currently incarcerated in the Federal
Correctional Institution at Greenville, Illinois, serving a 116-year sentence based
on armed robbery and weapons charges. United States v. Marks, No. 97-cr-24-2
(W.D. Ky. Aug. 31, 1998), aff’d 209 F.3d 577 (6th Cir. 2000). On January 28,
2014, petitioner filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241
(Doc. 1). Marks argues that his First Amendment right to access the courts was
denied when his petition/motion under 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence was denied without an evidentiary hearing. It is not entirely
clear which of several Section 2255 rulings he is challenging.
The Court will assume that Marks is taking issue with United States of
America v. Marks, Nos. 97-cr-24-2; 01-cv-605 (W.D. Ky. July 12, 2002), which is
the only Section 2255 motion specifically mentioned in the petition. He seeks
reinstatement and/or reconsideration of his Section 2255 motion, complete with
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an evidentiary hearing as prescribed in Section 2255(b). Marks does not
otherwise attack his conviction, sentence, or the duration of his confinement.
This case is now before the Court for a preliminary review of the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts. Rule 4 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, such as this action under 28 U.S.C. § 2241.
Discussion
As a general matter, “28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide
federal prisoners with distinct forms of collateral relief. Section 2255 applies to
challenges to the validity of convictions and sentences, whereas [Section] 2241
applies to challenges to the fact or duration of confinement. Hill v. Werlinger,
695 F.3d 644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629
(7th Cir. 2000). See also Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998).
Marks does not attack the duration of his confinement, per se. Therefore,
Section 2241 does not readily appear to be the appropriate avenue for relief.
Having been denied permission by the Court of Appeals for the Sixth Circuit to file
a successive Section 2255 motion (In re Marks, No. 04-6049 (6th Cir. May 2,
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2005)), it appears that Marks is attempting to use this court as a back door of
sorts, to allow him to present a successive, redundant Section 2255 motion
attacking his conviction and sentence, skirting the requirements for bringing a
successive petition (see Section 2255(h), (e).
In any event, his Section 2241
petition must be dismissed.
In Gray-Bey v. United States, 209 F.3d 986, 990 (7th Cir. 2000), the
Seventh Circuit cautioned: “a district court presented with a petition for a writ of
habeas corpus under [Section] 2241 should analyze that petition on its own
terms, without assuming that whatever cannot proceed under [Section] 2255 also
cannot proceed under [Section] 2241.” In addition, in Alaimalo v. United States,
645 F.3d 1042 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit reasoned
that, under the gateway offered in Section 2255(e), Section 2241 can be utilized
where a petition purportedly brought under Section 2241 is merely a “disguised”
Section 2255 motion, and the petitioner has not secured a certificate of
appealability (which is likely Marks’ situation), if the petitioner claims actual
innocence and “‘has not had an unobstructed procedural shot at presenting that
claim.’ ” Id. at 1047 (quoting Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir.
2006)).
Marks presents no argument regarding actual innocence, which, alone,
dooms his petition under the safety valve offered by Section 2255(e).
He,
however, does assert that he was denied an unobstructed opportunity to present
his arguments—whatever they may be—because he was denied a hearing.
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“A [Section] 2255 petitioner is entitled to an evidentiary hearing on his
claim where he alleges facts that, if true, would entitle him to relief. A hearing,
though, is not required when ‘the files and records of the case conclusively show
that the prisoner is entitled to no relief.’ ” Lafuente v. United States, 617 F.3d
944, 946 (7th Cir. 2010) (quoting 28 U.S.C. § 2255(b)) (other internal citations
omitted).
Although Marks’ Section 2255 motion and the district court’s ruling
are unavailable to this court at this time, Marks does not take issue with the
district court’s decision. Rather, he relies entirely upon the bald assertion that he
must be afforded a hearing under the First Amendment, which clearly is not the
law.
Therefore, his Section 2241 petition will be dismissed.
Out of an
overabundance of caution, given the absence of available information regarding
the Section 2255 motion and ruling, and in recognition of Marks’ pro se status,
dismissal shall be without prejudice and Marks shall be given an opportunity to
amend his petition.
Any amended petition will have to undergo preliminary
review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United
States District Courts.
IT IS HEREBY ORDERED that, for the reasons stated, the petition is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that on or before March 19, 2014, petitioner
Marks shall file an amended Section 2241 petition. If an amended petition is not
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filed by the prescribed deadline, this action will be dismissed with prejudice and
final judgment will enter accordingly.
IT IS SO ORDERED.
Signed this 19th day of February, 2014.
Digitally signed
by David R.
Herndon
Date: 2014.02.19
15:20:35 -06'00'
Chief Judge
United States District Court
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