Oman v. Cross

Filing 4

ORDER DISMISSING CASE with prejudice. Signed by Chief Judge David R. Herndon on 7/29/2014. (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, Chief Judge:
Petitioner Jason Douglas Oman, currently incarcerated in GreenvilleFederal Correctional Institution, Illinois, brings this habeas corpus action
pursuant to 28 U.S.C. § 2241. Petitioner seeks to challenge the sentencing court’s
determination that his prior conviction for burglary of a commercial building
would not qualify as a predicate offense for purposes of a career offender
enhancement under U.S.S.G. § 4B1.1. 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

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this action under 28 U.S.C. § 2241. After carefully reviewing the petition, the
Court concludes that this action is subject to dismissal.
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
Court for the District of Minnesota.

(Doc. 1, p. 1).

On February 11, 2005,

petitioner was sentenced to 188 months imprisonment and three years
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 conviction and sentence.
Id. Subsequently, petitioner filed a habeas petition with the United States District
Court for the District of Minnesota. In this § 2255 petition, petitioner challenged
his conviction on four grounds: 1) insufficient evidence; 2) evidentiary error; 3)
prosecutorial misconduct; and 4) ineffective assistance of counsel. Id. at 2. This
post-conviction appeal was denied on August 11, 2008. Id.
The Habeas Petition
In the instant petition, filed on July 8, 2014, petitioner challenges the
sentencing court’s determination that his prior conviction for a burglary of a
commercial building qualified as a predicate offense, which triggered the “career
offender” enhancement under the sentencing guidelines. Petitioner maintains that

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the sentencing court used the modified categorical approach when it made the
determination that the prior conviction qualified as a predicate offense. Petitioner
argues that the United States Supreme Court’s decision in Descamp v. United
States, __ U.S. __, 133 S. Ct. 2276 (2013) bars this approach. In light of the
Court’s holding in Descamp, petitioner insists that his prior conviction should not
have been used to enhance his present sentence.
Furthermore, relying on Brown v. Caraway, 719 F.3d 583, 586 (7th Cir.
2013), petitioner asserts that he may bring this claim under the “savings clause”
of 28 U.S.C. § 2255(e) because Descamp establishes that he is actually “innocent
of this non-qualifying enhancement.” (Doc. 1, p. 3).
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 § 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 Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998).
A federally convicted person may challenge his conviction and sentence by
bringing a motion pursuant to § 2255 in the court that sentenced him. 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).

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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 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
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

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miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
With these conditions in mind, the Court turns its attention to Descamps v.
United States, __ U.S. __, 133 S. Ct. 2276 (2013), the case cited by petitioner as
grounds for this § 2241 petition. The Court in Descamps held that the defendant
should not have been subject to a career criminal enhancement where his
previous California burglary conviction was for violating a statute that
criminalized conduct beyond the “generic” elements of the crime of burglary
(unlawful entry into a building with the intent to commit a crime). Descamps is a
new statutory interpretation case, but it does not represent a change in the law
that has any relevance to petitioner’s circumstances.

The Court in Descamps

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’s
conviction and sentencing.
Moreover, even if Descamps did adopt a new rule of law, the new law has
not been made retroactive by the Supreme Court. For the savings clause to apply
to his sentencing claim, petitioner must show that the relevant Supreme Court
precedent applies retroactively to cases on collateral review. 1 See In re
Davenport, 147 F.3d at 611.

To date, the Supreme Court has not made

Descamps retroactive on collateral review. See Groves v. United States, ––– F.3d
–––, 2014 WL 2766171 *4 (7th Cir. June 19, 2014). For these reasons, petitioner
1

Petitioner cites Brown v. Caraway in support of his contention that this matter is properly
brought under § 2241. The petitioner in Brown, however, relied upon Begay v. United States,
553 U.S. 137 (2008), a retroactive Supreme Court decision. Therefore, Brown is distinguishable
from the case at hand.
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has failed to show that the savings clause is applicable to this claim. His § 2241
petition shall be dismissed.
Disposition
As discussed above, petitioner has not demonstrated that § 2255 is an
inadequate remedy for his current claim, and consistent with In re Davenport,
petitioner cannot raise these claims through a § 2241 petition. Davenport, 147
F.3d 605 (7th Cir. 1998). Accordingly, the petition is summarily DISMISSED
with prejudice. The Court offers no opinion regarding the merits of a possible
successive § 2255 motion.
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)
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. 2

It is not necessary for

A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days after the
entry of the judgment. FED. R. CIV. P. 59(e).

2

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petitioner to obtain a certificate of appealability from this disposition of his
§ 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.

Digitally signed by
David R. Herndon
Date: 2014.07.29
10:10:46 -05'00'

IT IS SO ORDERED.
Dated: July 29, 2014.

Chief Judge
United States District Court

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