Teague v. Walton

Filing 5

ORDER DISMISSING CASE with prejudice. Signed by Chief Judge David R. Herndon on 4/8/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID TEAGUE, No. 05634-040,

)
)
)
)
)
)
)
)
)

Petitioner,
vs.
JEFFREY S. WALTON,
Respondent.

CIVIL NO. 14-cv-343-DRH

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
This matter is before the Court on petitioner’s second application in this
district for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He filed the
instant petition on March 17, 2014.
Petitioner is serving a 180-month sentence at the United States Prison at
Marion, and again brings a challenge to this enhanced sentence. He entered an
open plea of guilty to being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1), and was convicted in the Western District of Missouri (United
States v. Teague, Case No. 06-cr-3042).

On September 7, 2007, he was

sentenced as an armed career criminal pursuant to 18 U.S.C. § 924(e)(1), because
he had three prior qualifying felony convictions.

These included two burglary

convictions, which are the focus of his claim for habeas relief.

His criminal

record also included a robbery conviction.
In his direct appeal, petitioner argued that his prior convictions should not

Page 1 of 10

have been considered as “violent felonies” under § 924(e). 1 The appellate court
concluded that the prior convictions for burglary and robbery were properly
counted as “violent felony” offenses, noting that the pre-sentence report included a
factual description (to which petitioner had not objected) that each burglary
involved the unlawful entry into a commercial building with the intent to commit
larceny. United States v. Teague, 301 F. App’x 62 (8th Cir. 2009). Hence, there
was no error in imposing the enhanced armed-career-criminal sentence.

The

Supreme Court denied his petition for a writ of certiorari on May 4, 2009.
Teague v. United States, 129 S. Ct. 2170 (2009).
Petitioner’s timely collateral attack under 28 U.S.C. § 2255 was
unsuccessful (W. D. Mo. Case No. 09-3292, filed August 3, 2009). He attempted
to bring a successive § 2255 proceeding in 2012, but was denied leave to do so
(W. D. Mo. Case No. 12-3450; 8th Cir. Case No. 12-3902).
In his previous § 2241 petition, he challenged his sentence on the basis that
neither the burglary offenses nor the robbery involved the use of a firearm on his
part, thus they should not have been counted as predicate offenses for the armedcareer-criminal enhancement. This Court rejected that argument and dismissed
the petition with prejudice on August 19, 2013. Teague v. Walton, Case No. 13cv-745-DRH.
I.

The Petition

This time, petitioner relies on Descamps v. United States, 133 S. Ct. 2276

1

Counsel raised this argument in the context of a brief filed pursuant to Anders v. California, 386 U.S.
738 (1967).
Page 2 of 10

(2013), which held that a defendant’s enhanced sentence was improper where one
of his previous convictions was for burglary under a California statute which
criminalized conduct beyond the “generic” elements of the crime of burglary
(unlawful entry into a building with the intent to commit a crime).

Petitioner

suggests that the sentencing court in his case did not examine the elements of the
Arkansas burglary statute under which he was convicted, in order to determine
whether it contained the generic burglary elements. Instead, the court relied on
the findings and recommendations of the United States Probation Officer who
compiled the pre-sentence report (Doc. 1, p. 7). The petition does not include any
further information on the Arkansas statute itself, however. The two convictions
in question date back to 1966.
II.

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.
As a general rule, § 2241 is the appropriate means by which to challenge
the execution of a sentence, while § 2255 is to be used to challenge the validity of

Page 3 of 10

a conviction and sentence.

See Brown v. Rios, 696 F.3d 638, 640 (7th Cir.

2012); Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003); Walker v. O’Brien,
216 F.3d 626, 629 (7th Cir. 2000). Clearly, petitioner is attacking the validity of
his sentence, but that does not end the analysis.
Under very limited circumstances, a prisoner may employ § 2241 to
challenge his federal conviction or sentence.

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 Hill v. Werlinger, 695 F.3d 644, 648
(7th Cir. 2012) (“‘Inadequate or ineffective’ means that ‘a legal theory that could
not have been presented under § 2255 establishes the petitioner's actual
innocence.’”) (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002). The fact
that petitioner may be barred from bringing a second/successive § 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).

Instead, a petitioner under § 2241 must

demonstrate the inability of a § 2255 motion to cure the defect in the conviction.
“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.” Davenport, 147 F.3d at 611.
The Seventh Circuit has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. First, he

Page 4 of 10

must show that he relies on a new statutory interpretation case rather than a
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).
Petitioner’s argument fails to bring his claim within the savings clause.
While Descamps v. United States is a statutory interpretation case, and too
recent to have been available to petitioner at the time he filed his § 2255 motion, it
does not represent a change in the law regarding whether a burglary conviction
may qualify as a predicate felony under the Armed Career Criminal Act (ACCA).
The Descamps opinion reiterated the “categorical approach” analysis outlined in
Taylor v. United States, 495 U.S. 575 (1990), which has been the rule since well
before petitioner was sentenced under the ACCA. The Descamps Court described
the Taylor approach as follows:
Sentencing courts may “look only to the statutory definitions”— i.e.,
the elements—of a defendant's prior offenses, and not “to the
particular facts underlying those convictions.” [Taylor, 495 U.S.] at
600, 110 S. Ct. 2143. If the relevant statute has the same elements
as the “generic” ACCA crime, then the prior conviction can serve as
an ACCA predicate; so too if the statute defines the crime more
narrowly, because anyone convicted under that law is “necessarily ...
guilty of all the [generic crime's] elements.” Id., at 599, 110 S. Ct.
2143. But if the statute sweeps more broadly than the generic crime,
a conviction under that law cannot count as an ACCA predicate, even
if the defendant actually committed the offense in its generic form.
The key, we emphasized, is elements, not facts. So, for example, we
Page 5 of 10

held that a defendant can receive an ACCA enhancement for burglary
only if he was convicted of a crime having “the basic elements” of
generic burglary— i.e., “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.”
Ibid.
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).
The Descamps Court then discussed Shepard v. United States, 544 U.S.
13 (2005), which took a “modified categorical approach” to determine whether a
conviction under a “divisible” burglary statute including elements beyond
“generic” burglary could serve as a predicate felony under the ACCA.

For

example, if the statute encompassed the element of unlawful entry to a vehicle as
well as a building, the sentencing court could look to documents such as the
charging instrument or terms of a guilty plea to determine whether the defendant
had “necessarily admitted [the] elements of the generic offense.” Shepard, 544
U.S. at 26. Again, this was the law at the time petitioner was sentenced under the
ACCA.
Descamps involved a burglary conviction where the statute was not
“divisible” into alternative elements which necessitated an examination of
additional case documents in order to determine whether the conviction was for
“generic” burglary. Instead, the statute in Descamps was so broad that it allowed
for a conviction even if the defendant had made a lawful entry into a structure.
Therefore, the Court held, no conviction under that statute could serve as a
predicate offense for an ACCA enhancement, and it was improper for the
sentencing court to consider other documents which might have disclosed that the

Page 6 of 10

defendant’s actual conduct fell within the scope of “generic” burglary. Descamps
v. United States, 133 S. Ct. 2276, 2284-86 (2013).
In the instant case, petitioner merely speculates that there is a “mismatch”
between the elements of the Arkansas burglary statute under which he was
convicted, and the generic definition of burglary (Doc. 1, p. 8). He admits he is
unable to provide the Arkansas statute, and asks this Court to find and review the
law for him. This does not amount to even a minimal showing that petitioner
might be entitled to relief, and borders on frivolity.
Although it is not the Court’s role to perform petitioner’s research for him,
out of an abundance of caution, the Court has examined this matter further. As
best the Court can determine, the Arkansas burglary statute in effect at the time of
petitioner’s offenses was as follows:
Burglary is the unlawful breaking or [footnote omitted] entering a
house, tenement, railroad car, automobile, airplane, or any other
building, although not specially named herein, boat, vessel, or water
craft, by day or night, with the intent to commit any felony or
larceny.
See Thompson v. State, 477 S.W.2d 469, 471 (Ark. 1972) (quoting Ark. Stat.
Ann. § 41-1001 (Repl.1964)) (emphasis added); see also Mouser v. State, 219
S.W.2d 611, 613 (Ark.1949). This burglary statute is “divisible” as discussed in
Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544
U.S. 13 (2005).

It is nothing like the statute in Descamps.

Accordingly, the

sentencing court could properly look to other documents in petitioner’s cases in
order to determine whether his prior convictions fit with the generic definition of

Page 7 of 10

burglary.
The record in petitioner’s criminal case shows that he indeed was convicted
of “generic” burglary under the Arkansas statute, thus the enhanced sentence was
proper. The pre-sentence report, to which petitioner did not object, specified that
both burglary convictions involved the unlawful entry into a commercial building
with the intent to commit larceny. United States v. Teague, 301 F. App’x 62 (8th
Cir. 2009). In affirming petitioner’s sentence, the Eighth Circuit cited Taylor v.
United States, noting that a “person has been convicted of burglary for purposes
of § 924(e) enhancement if [he was] convicted of any crime having [the] basic
elements of unlawful entry into a building with [the] intent to commit [a] crime.”
Teague, 301 F. App’x at 62. The court further noted that since the burglaries and
robbery convictions properly supported the enhanced sentence, “we need not
address the treatment of Teague's other convictions.” Id.
The indictment in petitioner’s case discloses that in addition to the three
Arkansas convictions, he had also been convicted of ten violent felonies in
Kentucky in 1993: five counts of second-degree rape, two counts of second degree
sodomy, two counts of sexual abuse, and one count of incest (Doc. 1 in Case No.
06-cr-3042 (W.D. Mo.)).

The indictment specifically stated that these felony

convictions qualified as “violent felonies” within the meaning of 18 U.S.C.
§ 924(e)(2)(B). Thus, it appears that these more recent felony convictions would
also have been sufficient to support the extended sentence.
To summarize, the legal principles revisited in Descamps v. United States,

Page 8 of 10

133 S. Ct. 2276 (2013), governed the trial court at the time of petitioner’s
conviction, appeal, and § 2255 motion. He could have raised the argument herein
in those proceedings, thus § 2255 was not inadequate to address his claim. The
Arkansas statute under which petitioner was convicted of burglary in 1966 does
not bring his case within the scope of the ruling in Descamps.
For the above reasons, the instant § 2241 action shall be dismissed.
III.

Filing Fee

Petitioner’s motion for leave to proceed in forma pauperis (IFP) (Doc. 2)
shall be addressed in a separate order. The dismissal of this action does not
relieve petitioner of the obligation to pay the fee, in the event his IFP request is
denied. See 28 U.S.C. § 1915(b)(1), (e)(2); Lucien v. Jockisch, 133 F.3d 464,
467-68 (7th Cir. 1998).
IV.

Disposition

The petition for habeas relief pursuant to 28 U.S.C. § 2241 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 liable
for a portion of the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past six months)

Page 9 of 10

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.
petitioner to obtain a certificate of appealability.

It is not necessary for

Walker v. O’Brien, 216 F.3d

626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
Signed this 8th day of April, 2014.

David R.
Herndon
2014.04.08
17:33:40 -05'00'
Chief Judge
United States District Court

Page 10 of 10