Kramer v. United States of America
Filing
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MEMORANDUM AND ORDER, The Court DISMISSES Kramers § 2255 motion (Doc. 1) for lack of jurisdiction, DIRECTS the Clerk of Court to enter judgment accordingly, and GRANTS a certificate of appealability on one issue. Signed by Judge J. Phil Gilbert on 8/8/2014. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BENJAMIN BARRY KRAMER,
Petitioner,
v.
Case No. 14-cv-678-JPG
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court following its June 16, 2014, order for petitioner
Benjamin Barry Kramer to show cause why the Court should not dismiss this motion under 28
U.S.C. § 2255 as a “second or successive” petition filed without permission from the Court of
Appeals (Doc. 2). Kramer has responded to the order (Doc. 3), and the Government has replied to
Kramer’s response (Doc. 4).
The Court noted in its order to show cause that this is not Kramer’s first § 2255 motion.
He filed his first in 1997, Kramer v. United States, 97-cv-4117-JLF (S.D. Ill.), which resulted in
the vacating of his 40-year drug conspiracy sentence in light of Rutledge v. United States, 517 U.S.
292, 300 (1996) (holding that conspiracy is lesser included offense of continuing criminal
enterprise (“CCE”)), but leaving his life sentence for his CCE conviction in place. Kramer argues
that this second motion, which seeks to vacate the CCE sentence, should be treated as a first
motion since his 1997 motion was partially successful and resulted in an amended judgment. He
believes the Court of Appeals for the Seventh Circuit was wrong in Kramer v. Olson, 347 F.3d 214
(7th Cir. 2003), when it held that Kramer’s petition under 28 U.S.C. § 2241 was really a second
§ 2255 motion that required preauthorization by the Court of Appeals under 28 U.S.C. § 2255(h).
Kramer argues that Magwood v. Patterson, 561 U.S. 320 (2010), shows the Court of
Appeals was wrong and that he should be allowed to file another petition addressing his amended
judgment without being subject to the successive petition approval process. In Magwood, the
petitioner had been sentenced to death in state court, a federal court had granted a petition for a
writ of habeas corpus under 28 U.S.C. § 2254, the petitioner was resentenced in another full
sentencing proceeding, and then filed another habeas petition. Id. at 326-27. The Supreme
Court held that the second habeas petition was not a “second or successive” petition since it
addressed a new judgment and mistakes that were alleged to have occurred in reaching that new
judgment. Id. at 323-24. As in Magwood, Kramer believes his amended judgment is a new
judgment that restarts the count for his § 2255 motions.
The Court of Appeals has considered the application of Magwood to a situation where the
second § 2255 challenges the underlying conviction but does not allege a new error in the
resentencing proceedings. It held that, even after Magwood, § 2255 “motions after resentencing
are not second or successive when they allege errors made during the resentencing, but they are
second or successive when they challenge the underlying conviction.” Suggs v. United States,
705 F.3d 279, 282-83 (7th Cir.) (citing Dahler v. United States, 259 F.3d 763 (7th Cir. 2001)), cert.
denied, 133 S. Ct. 2339 (2013).
Regardless of whether this Court agrees with Suggs, it is bound to follow it. Accordingly,
it must dismiss Kramer’s pending motion as an unauthorized second or successive § 2255 motion.
Kramer’s petition does not allege any new errors that occurred during the entry of the amended
judgment, which involved only vacating the conspiracy sentence and leaving untouched the CCE
sentence. Instead, based on Richardson v. United States, 526 U.S. 813 (1999) (holding the jury
must unanimously agree on the underlying violations in a CCE conviction), he attacks his
underlying conviction for CCE based on the failure of the Court to limit the jury to consideration
of the specific underlying violations listed in the indictment and to require the jury to unanimously
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agree to those violations. He also alleges mistakes by the Court of Appeals in his direct appeal
and his § 2241/§ 2255 appeal. None of these alleged errors occurred during his resentencing.
Thus, his attempt to raise them now constitutes a “second or successive” petition under the rule of
Suggs. Thus, the Court must dismiss Kramer’s pending § 2255 motion for lack of jurisdiction.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of the
Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of
appealability of this final order adverse to the petitioner. A certificate is required even for cases in
which the court dismissed an unauthorized second or successive collateral attack for lack of
jurisdiction. Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per curiam). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004);
Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing where
the Court denies relief on procedural grounds, the petitioner must show “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added); accord
Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012). Thus, disputes about procedural or statutory
issues in a case cannot justify a certificate of appealability unless “a substantial constitutional issue
lurks in the background, and the statutory question is independently substantial.” Ramunno v.
United States, 264 F.3d 723, 725 (7th Cir. 2001) (question of a petition’s timeliness) (citing Slack,
529 U.S. at 483-85).
The Court believes that jurists of reason, like Judge Sykes in her Suggs dissent, would find
debatable the issue of whether Kramer’s pending motion was an unauthorized successive petition
after Magwood. In light of the fact that Richardson is retroactively applicable on collateral
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review, see Lanier v. United States, 220 F.3d 833, 838 (7th Cir. 2000), a § 2255 motion may
provide Kramer relief. While the Court had doubts about whether Kramer filed his current
motion within the limitations period of 28 U.S.C. § 2255(f), it believes he has made a substantial
showing of the denial of a constitutional right that deserves further consideration.
For these reasons, the Court DISMISSES Kramer’s § 2255 motion (Doc. 1) for lack of
jurisdiction, DIRECTS the Clerk of Court to enter judgment accordingly, and GRANTS a
certificate of appealability on the following issue:
whether Kramer’s pending § 2255 motion is a “second or successive” motion under
§ 2255(h) such that he should be forbidden from raising his Richardson claim
unless he secures approval from the Court of Appeals.
IT IS SO ORDERED.
DATED: August 8, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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