Stallings v. Cross

Filing 3

ORDER DISMISSING CASE. IT IS FURTHER ORDERED that, because this petition has been found to be without merit, frivolous and vexatious, on or before August 8, 2014, petitioner Brett Stallings shall SHOW CAUSE in writing why he should not be sanction ed with a $500 fine and entry of a filing ban directing that, until the fine is paid in full, any and all documents submitted for filing in this district court that do not pertain to an appeal in this case, shall be returned unfiled. (Action due by 8/8/2014). Signed by Chief Judge David R. Herndon on 7/9/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRETT STALLINGS,
No. 17370-047,
Petitioner,
vs.

CIVIL NO. 14-cv-00636-DRH

JAMES CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner Brett Stallings, an inmate at the Federal Correctional Institution
in Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. §
2241 to challenge the sentence imposed in November 2004, after he was
convicted for being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g).

See United States v. Stallings, Case No. 01-cr-30158-WDS (S.D. Ill.

judgment filed Nov. 19, 2004). Because he had three prior qualifying offenses,
Stallings was sentenced to a 188-month term of imprisonment as an armed
career criminal, pursuant to 18 U.S.C. § 924(e)(1). Citing 18 U.S.C. § 921(a)(20),
Stallings argues that one of the three prior felonies used to enhance his sentence
had been “discharged” and his civil rights had been restored, disqualifying that
offense for purposes of the Section 921(e). Consequently, he contends, that he is
“actually innocent” and should be resentenced and/or released from prison.

Page 1 of 13

Rule 4 of the Rules Governing Section 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, and reviewing his
litigation history, the Court concludes that petitioner is not entitled to relief, and
the petition must be dismissed. Furthermore, it appears that sanctions may be
warranted, as this is Stallings third Section 2241 petition presenting the same
argument.
Procedural History
Petitioner Stallings’ 2004 conviction was affirmed on direct appeal.

See

United States v. Stallings, 160 Fed. App’x 478 (7th Cir. 2005) (addressing the
sufficiency of the evidence).
Petitioner next filed a motion under 28 U.S.C. § 2255 to vacate, correct or
set aside his sentence. See Stallings v. United States, Case No. 06-cv-136-WDS
(S.D. Ill. filed Feb. 14, 2006). He raised several claims, including that his counsel
was deficient for failing to raise the issue that he should not have been sentenced
as an armed career criminal.

The petition was dismissed and petitioner

appealed. As part of that appeal, he attempted to raise the claim that a prior
burglary conviction was not a “violent felony” under the Armed Career Criminal

Page 2 of 13

Act, 18 U.S.C. § 924(e)(1). In denying petitioner’s request to expand the scope of
his appeal, the Court of Appeals noted that petitioner’s claim was frivolous,
finding that “[t]he indictment and judgment for that conviction reveal that Mr.
Stallings burglarized a structure, and burglary of a structure is per se a ‘violent
felony.’” Stallings v. United States, 536 F.3d 624, 626 n.1 (7th Cir. 2008); see
also 18 U.S.C. § 924(e)(2)(B)(ii). The matter was remanded on other grounds for
a determination as to whether the 188-month sentence would have been the same
if this Court had viewed the sentencing guidelines as advisory rather than
mandatory; upon remand this Court confirmed the sentence would not have
changed.
In 2012, Stallings challenged the armed career criminal enhancement in his
first Section 2241 petition, Stallings v. Cross, Case No. 12-cv-643-DRH (S.D. Ill.
filed May 18, 2012). He argued that his sentence should not have been enhanced,
because the burglary offense on which it was based had been dismissed.1 On
August 9, 2012 (Case No. 12-cv-643-DRH, Doc. 5), the undersigned Judge
dismissed that petition on preliminary review, finding that petitioner’s argument
had been specifically addressed by this Court in the Section 2255 proceeding,
Stallings v. United States, Case No. 06-cv-136-WDS.

Review of the record

showed that the sentence enhancement was based on the “Wayne burglary,” and
not on the “Bailey burglary” (which had been dismissed). See Case No. 12-cv-

1

Stallings acknowledged that he had three felony convictions, two armed robberies and a burglary
to the dwelling of Marvin Wayne. (Case No. 12-cv-643-DRH, Doc. 1, p.5). He argued that a charge
of burglarizing the Bailey residence, for which Stallings was never convicted, had been used as one
of the requisite felonies for enhancing his sentence. (Case No. 12-cv-643-DRH, Doc. 1, pp.5-6).
Page 3 of 13

643-DRH, Doc. 5, n.2. Furthermore, petitioner’s appeal from the denial of his
Section 2255 motion was found to be frivolous, which alone was grounds for
dismissal of the first Section 2241 petition (see Case No. 06-cv-136-WDS, Doc.
66). Finally, petitioner made no showing that he had a non-frivolous claim of
actual innocence that could not have been brought in a Section 2255 proceeding
(Case No. 12-cv-643-DRH, Doc. 5).
After dismissal of that first Section 2241 petition (Case No. 12-cv-643DRH), Stallings filed a motion to alter or amend judgment, which was denied on
September 27, 2012 (Case No. 12-cv-643-DRH, Doc. 8). Petitioner did not appeal
the dismissal of that case, and instead filed a second Section 2241 petition,
Stallings v. Cross, Case No. 12-cv-1097-DRH (S.D. Ill. filed Oct. 15, 2012).
In his second Section 2241 petition, Stallings again argued that he had only
two prior qualifying felonies, not three, thus his enhanced sentence was improper.
He asserted that the Court erred in finding that the exact issue raised in the
Section 2255 proceeding, Case No. 12-cv-643-DRH, had been addressed in his
first Section 2241 petition, Case No. 06-cv-136-WDS.

Stallings attempted to

distinguish the two actions by noting that his Section 2255 arguments were based
on his belief that the dismissed “Bailey burglary” was the basis for the sentence
enhancement. Because the Court did not make clear until its November 2, 2011,
order that the Wayne burglary was the third offense that provided grounds for the
enhanced sentence, Stallings contended he should have been permitted to
challenge the sentence by attacking the “Wayne burglary” via Section 2241. More

Page 4 of 13

specifically, Stallings argued that under Buchmeier v. United States, 581 F.3d
561 (7th Cir. 2009), the “Wayne burglary” should not have been used to enhance
his 2004 sentence because his civil rights had been restored after he completed
the sentence on the “Wayne burglary” Order for Discharge).

Because the

Buchmeier decision post-dated petitioner’s 2006 Section 2255 motion, he
claimed he could not have brought this argument in that proceeding.
This Court was unpersuaded. Stallings’ second Section 2241 petition was
dismissed because it re-asserted grounds which were previously dismissed with
prejudice in his Section 2255 proceeding, Case No. 12-cv-643-DRH, and which
should have been challenged on appeal, rather that reargued in a second petition.
See Case No. 12-cv-1097-DRH, Doc. 3.

Citing 28 U.S.C. § 2255(e), Hill v.

Werlinger, 695 F.3d 644, 648 (7th Cir. 2012), Brown v. Rios, 696 F.3d 638, 640
(7th Cir. 2012), and In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998), the
Court further concluded that Stallings had failed to show that Section 2255 was
inadequate of ineffective to test the legality of his detention.
In an unpublished order dated January 25, 2013, the Court of Appeals for
the Seventh Circuit affirmed the dismissal of Stallings’ second Section 2241
petition. Stallings v. Cross, Case No. 12-3637 (7th Cir. Jan. 25, 2013) (Case No.
12-1097, Doc. 12-1). The appeal was characterized as “meritless.” Furthermore,
Stallings was warned that “the submission of frivolous papers will result in
sanctions.” Id. (citing Alexander v. United States, 121 F.3d 312 (7th Cir. 1997)
(finding that courts have inherent authority to protect themselves from vexatious

Page 5 of 13

litigation and imposing a $500 fine for the filing of a third collateral attack, and
entering a filing ban pursuant to Support Systems International, Inc. v. Mack, 45
F.3d 185 (7th Cir. 1995)).
The Third Section 2241 Petition
Undeterred, Stallings has now filed a third Section 2241 petition (Doc. 1)
raising, essentially, the same arguments presented in his other two Section 2241
petitions. Consequently, the Court adopts and reiterates its order dismissing the
second petition, Case No. 12-cv-1097-DRH, Doc. 3.

The following additional

analysis is offered in order to distinguish the second and third Section 2241
petitions, and to show that even if the argument is new, it has no merit.
A Section 2241 petition can only be used to attack a conviction or sentence
when the Section 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); 28 U.S.C. § 2255(e).

“ ‘Inadequate or ineffective’

means that ‘a legal theory that could not have been presented under § 2255
establishes the petitioner's actual innocence.’ ”

Hill, 695 F.3d at 648 (citing

Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); In re Davenport, 147 F.3d
605, 608 (7th Cir. 1998)).
The argument that the prior conviction on which Stallings’ civil rights had
been restored should not have been used to enhance his sentence was raised and
rejected in his second Section 2241 petition. Stallings attempts to distinguish the
third petition, arguing that his previous Section 2241 petitions were premised

Page 6 of 13

upon Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009), and the third
petition is now focused upon whether 18 U.S.C. § 921(a)(2) and the “order of
discharge” were properly interpreted by the sentencing court. This is a distinction
without a difference.
Buchmeier is a case pertaining to Illinois law and the interpretation of a
discharge letter and whether it satisfied Section 921(a)(2) restoration of civil
rights.

The appellate court discussed the “big three civil rights” that must be

restored relative to Section 921(a)(2)): the rights to vote, hold office and to serve
on a jury. Buchmeier, 581 F.3d at 564. The appellate court concluded that the
“big three” do not all have to be specifically enumerated in the restoration of
rights document because a defendant may not have lost all three. Id. Buchmeier
otherwise focused on the wording of the particular discharge letter, vis-à-vis
Section 921(a):
We have been advised by the field services office of the Stateville
Correctional Center that you have completed the maximum of your
sentence as of 02/09/1994. On this date, your obligation to the
department ceases.
We are pleased to inform you of the restoration of your right to vote
and to hold offices created under the constitution of the state of
Illinois. You also have the right to restoration of licenses granted to
you under the authority of the state of Illinois if such license was
revoked solely as a result of your conviction, unless the licensing
authority determines that such restoration would not be in the public
interest.
Id. at 564 (quoting Buchmeier’s discharge letter).

Page 7 of 13

The key principle drawn from Buchmeier is:
[A] state may not employ language in discharging a prisoner that will
lull the individual into the misapprehension that civil rights have
been restored to the degree that will permit him to possess firearms.”
United States v. Vitrano, 405 F.3d 506, 510 (7th Cir.2005). Thus, if
a state sends a document to a convicted felon that seems to restore
all civil rights, “the conviction does not count for federal purposes
unless the document warns the person about a lingering firearms
disability.
Buchmeier, 581 F.3d at 566. Regardless of how he tries to spin it, that is the
essence of the argument Stallings presents in his third Section 2241 petition.
Nevertheless, for the sake of completeness, this argument will be explored in
detail.
Section 921provides in pertinent part:
Any conviction which has been expunged, or set aside or for which a
person has been pardoned or has had civil rights restored shall not
be considered a conviction for purposes of this chapter, unless such
pardon, expungement, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive firearms.
18 U.S.C.A. § 921(a).
Stallings now argues that Section 921(a) does not specify how many civil
rights must be restored; therefore, because his conviction has been discharged,
and there is no specific provision that he may not ship, transport, possess, or
receive firearms, the discharged burglary conviction cannot be used to enhance
his sentence (see Doc. 1, pp. 6-7). More to the point, Stallings believes that his
discharge letter expunged his conviction and satisfied Section 921(a) (and
Buchmeier).

He completely ignores that in Buchmeier the appellate court

observed (despite receipt of a discharge letter):

Page 8 of 13

If someone asks Buchmeier “have you been convicted of a felony?” he
must answer “yes”; restoration of civil rights differs from
expungement as a matter of Illinois law. But because the state sent
Buchmeier a document stating that his principal civil rights have
been restored, while neglecting to mention the continuing firearms
disability, the final sentence of § 921(a)(2)) means that his burglary
convictions do not count for federal purposes. He is entitled to be
resentenced.
Buchmeier, 581 F.3d at 567. In other words, it was not the discharge itself, but
the confusing language about the restoration of civil rights that secured
Buchmeier resentencing.
Regarding whether Stallings has been lulled into believing his civil rights
have been restored to the extent necessary to qualify for the exclusion in Section
921(a), he points out that the restoration of rights language appears at the bottom
of the “Order for Discharge,” as a post script (see Doc. 1, p. 13). He argues that
the state should not be allowed to rely upon a mere post script—the fine print, or
an afterthought.
The “Order for Discharge” states that Stallings, having been “released on
parole or mandatory supervised release,” and the Parole Board “believing that
final release is compatible with the welfare of society,” the Board orders that
Stallings “is hereby finally discharged from this conviction or commitment.” (Doc.
1, p. 13) (emphasis added). The post script then states:
Delivery of this document to you relieves you of all sentence
obligation [sic] as described herein.
Your rights to vote and
administer estates are regained, though you may be required to show
this document to the registration authority.
(Doc. 1, p. 13) (emphasis added).

Page 9 of 13

The “four corners” of the Order for Discharge, not just the parts Stallings
favors, must be considered. See United States v. Burnett, 641 F.3d 894, 896
(7th Cir.2011) (“Section 921(a)(20) directs us to the four corners of the
document, and there we stop.”).

As a whole, the language of the Order for

Discharge would not lull one into the misapprehension that civil rights have been
restored to the degree that would permit the possession of firearms. Admittedly,
the reference to the discharge of “conviction or commitment” is somewhat
confusing, but the use of the disjunctive and the inclusion of the clarifying post
script indicate that the Order for Discharge by the Parole Board does not conform
with the exclusion in Section 921(a). Furthermore, the document does not refer
to “all” civil rights being restored.

Rather, only one of the “big three” is

referenced.
Even if this Court’s reading of the Order for Discharge is incorrect, the
third Section 2241 petition fails, as did the second, because this argument could
have been, and actually was, presented in Stallings’ Section 2255 motion. See
Case No. 06-cv-136-WDS, Doc. 2, p. 10 (Argument 5 regarding the 1978 burglary
conviction that was “discharged off parole” and the lack of notice that the
conviction could be used for “enhancements”).
For all of these reasons, petitioner has not demonstrated that Section 2255
is an inadequate remedy for his current claim, and consistent with Hill v.
Werlinger and In re Davenport, petitioner cannot raise this claim through a

Page 10 of 13

Section 2241 petition, no matter how many times he tries.

Accordingly, the

petition will be dismissed with prejudice.
Sanction for Vexatious Litigation
In dismissing Stallings’ second Section 2241 petition, the Court of Appeals
for the Seventh Circuit warned that “the submission of frivolous papers will result
in sanctions.”

Stallings v. Cross, Case No. 12-3637 (7th Cir. Jan. 25, 2013)

(Case No. 12-1097, Doc. 12-1). As explained above, Stallings’ third Section 2241
is merely a rehash—a different spin—on arguments previously presented in the
Section 2255 proceedings and the first two Section 2241 petitions. Thus, the
third Section 2241 petition is frivolous and vexations—an unwarranted bother
and drain on the Court’s resources.
Under Alexander v. United States, 121 F.3d 312 (7th Cir. 1997), and
Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), courts
have inherent authority to protect themselves from vexatious litigation by
imposing fines and filing bans. In Alexander, and a $500 fine for the filing of a
third collateral attack, and entry of a Mack filing ban were deemed appropriate
sanctions.
Petitioner Stallings will be granted a brief period in which to show cause
why he should not be sanctioned with a $500 fine and entry of a filing ban
directing that, until the fine is paid in full, any and all documents submitted for
filing in this district court that do not pertain to an appeal in this case, shall be
returned unfiled.

Page 11 of 13

Disposition
IT IS HEREBY ORDERED that, for the reasons stated, petitioner Brett
Stallings’ third Section 2241 petition (Doc. 1) is summarily DISMISSED.
Judgment shall enter accordingly.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
in this district 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 if he is allowed to proceed as a pauper, 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, 725-26 (7th Cir. 2008).
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 FURTHER ORDERED that, because this petition has been found to
be without merit, frivolous and vexatious, on or before August 8, 2014, petitioner
Brett Stallings shall SHOW CAUSE in writing why he should not be sanctioned
with a $500 fine and entry of a filing ban directing that, until the fine is paid in

Page 12 of 13

full, any and all documents submitted for filing in this district court that do not
pertain to an appeal in this case, shall be returned unfiled.
IT IS SO ORDERED.
Signed this 9th day of July, 2014.

Digitally signed by
David R. Herndon
Date: 2014.07.09
12:42:39 -05'00'
Chief Judge
United States District Court

Page 13 of 13