Oman v. Cross

Filing 21

ORDER DISMISSING CASE, granting 20 MOTION to Dismiss filed by James Cross. Signed by Judge David R. Herndon on 9/11/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON DOUGLAS OMAN,
No. 27604-013,
Petitioner,
vs.

Case No. 14-cv-771-DRH

JAMES CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
On July 7, 2015, the Court ordered respondent to brief the threshold
question of whether a request for habeas relief based on the United States
Supreme Court’s holding in Johnson could be properly raised in a motion filed
pursuant to 28 U.S.C. § 2241. See Doc. 8. Now before the Court is respondent’s
brief, which includes a motion to dismiss petitioner’s habeas petition. See Doc.
20. In light of the government’s response and recent decisions in the Seventh
Circuit, the Court has reached the conclusion that a habeas petition filed
pursuant to 28 U.S.C. § 2241 is not the appropriate vehicle to pursue relief based
on Johnson.

As such, respondent’s motion to dismiss (Doc. 20) shall be

GRANTED and petitioner’s habeas petition (Doc. 1) shall be DISMISSED.
Procedural History
On September 30, 2004, petitioner was found guilty of bank robbery under
18 U.S.C. §§ 2 and 2113(a) following a jury trial in the United States District
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Court for the District of Minnesota.

Doc. 1, p. 1.

On February 11, 2005,

petitioner was sentenced to 188 months imprisonment and three years of
supervised release. Id. Petitioner filed a timely appeal with the Eighth Circuit
Court of Appeals. In that appeal petitioner raised the issue of whether his prior
burglary of an unoccupied commercial building should have qualified as a
predicate for sentencing enhancement under U.S.S.G. § 4B1.1. On November 2,
2005, the Eighth Circuit issued an opinion affirming the sentencing court’s
determination that petitioner’s prior conviction for aiding and abetting third
degree burglary qualified as a predicate offense for purposes of U.S.S.G. §
4B1.2(a), the sentencing guidelines career offender statute. See United States v.

Oman, 427 F.3d 1070, 1076 (8th Cir. 2005). In affirming the sentencing court’s
determination, the Eighth Circuit cited prior Eighth Circuit cases, which have
held “since burglary always creates a ‘serious potential risk of physical injury to
another,’ it qualifies as a crime of violence.” United States v. Mohr, 407 F.3d 898,
901 (8th Cir. 2005) (quoting United States v. Hascall, 76 F.3d 902, 905 (8th
Cir.1996)).
Subsequently, petitioner filed a § 2255 habeas petition with the United
States District Court for the District of Minnesota challenging his conviction on
alternative grounds. Id. at 2. Petitioner’s post-conviction appeal was denied on
August 11, 2008. Id.
On July 8, 2014, petitioner filed a habeas petition in this Court pursuant to
28 U.S.C. § 2241 challenging, once again, the sentencing court’s determination

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that his prior conviction for a burglary of a commercial building qualified as a
predicate offense for purposes of the career offender sentencing guidelines based
on the United States Supreme Court’s decision in Descamps v. United States, __
U.S. __, 133 S. Ct. 2276 (2013). See Doc. 1. In an Order denying the petition, the
Court found that petitioner was not entitled to relief under § 2241 because

Descamps was not a new statutory-interpretation case made retroactive on
collateral review. See Doc. 4. Petitioner then filed a motion to alter or amend
judgment.

See Doc. 6. Cognizant that the United States Supreme Court was

considering arguments in a case, Johnson v. United States, 135 S. Ct. 939 (2015),
that might impact petitioner’s case, the Court stayed petitioner’s motion to alter
or amend judgment.
Following the Supreme Court’s decision in Johnson v. United States, –––
U.S. ––––, 135 S.Ct. 2551, 2557 (Jun. 26, 2015), which invalidated the residual
clause of the Armed Criminal Career Act, this Court lifted the stay in this case and
ordered respondent to brief the issue of whether Johnson entitled petitioner to
seek relief under § 2241.
On September 4, 2015, respondent filed a response and a motion to
dismiss petitioner’s habeas petition. See Doc. 20.

Respondent argues that

petitioner has failed to demonstrate that § 2255 is “inadequate or ineffective” to
test the legality of his sentence, and therefore his § 2241 petition is procedurally
barred. After careful consideration, the Court agrees.
Discussion

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Federal prisoners, like petitioner, who wish to collaterally attack their
convictions or sentences ordinarily must do so under 28 U.S.C. § 2255. Brown v.

Rios, 696 F.3d 638, 640 (7th Cir.2012). Indeed, a § 2255 motion is ordinarily the
“exclusive means for a federal prisoner to attack his conviction.” Kramer v. Olson,
347 F.3d 214, 217 (7th Cir. 2003).
Under very limited circumstances, however, 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, 695 F.3d at 648 (“‘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). See also 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/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)

(§ 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 has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. First, he

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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).
Petitioner has failed to satisfy the first condition. On August 4, 2015, the
Seventh Circuit concluded that Johnson announces a new substantive rule of

constitutional law that is retroactively applicable in a collateral attack on a final
conviction. See Price v. United States, 795 F.3d 731, 734 (7th Cir. Aug.4, 2015).
Based on this conclusion, the Seventh Circuit granted the petitioner in Price
permission to file a second or successive § 2255 motion pursuant to 28 U.S.C. §
2255(h). See Price, 795 F.3d at 734-35. A second or successive § 2255 petition
is allowed when the appropriate court of appeals certifies that the petition is
based on “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.”

28 U.S.C. §

2255(h)(2). This seems to suggest that § 2255 cannot be said to be inadequate or
ineffective to test the legality of the petitioner’s conviction and sentence and,
therefore, the need and the opportunity to use the savings clause under 28 U.S.C.
§ 2255(e) is extinguished.

As such, petitioner’s § 2241 petition shall be

DISMISSED with prejudice.

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If petitioner decides to pursue relief under § 2255, he is advised that
because he previously filed a § 2255, he, like the petitioner in Price, would need to
seek permission to file a second or successive § 2255 motion with the federal
Court of Appeals of the circuit in which he was sentenced.

See 28 U.S.C. §

2244(b)(3). In his case, since he was convicted in the District of Minnesota, he
must apply to the Eighth Circuit.
Finally, petitioner should note that the one-year period prescribed by 28
U.S.C. 2255(f)(3) for filing a § 2255 motion runs from the date of the Supreme
Court's ruling initially recognizing the right asserted, not from the date the newly
recognized right was found to be retroactive. Dodd v. United States, 545 U.S. 353,
357 (2005).
Disposition
As discussed above, petitioner has not demonstrated that § 2255 is an
inadequate remedy for his current claim, and, therefore, consistent with In re

Davenport, petitioner cannot raise these claims through a § 2241 petition.
Davenport, 147 F.3d 605 (7th Cir. 1998). Accordingly, respondent’s motion to
dismiss (Doc. 20) shall be GRANTED and petitioner’s habeas petition (Doc. 1)
shall be DISMISSED
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).

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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)
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. A Rule 59(e) motion must
be filed no more than twenty-eight (28) days after the entry of the judgment, and
this 28-day deadline cannot be extended.

It is not necessary for petitioner to

obtain a certificate of appealability in an appeal from this petition brought under
§2241. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: September 11, 2015

Digitally signed by
David R. Herndon
Date: 2015.09.11
15:49:28 -05'00'

__________________________________
United States District Judge

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