Spencer v. Cross, Jr.

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Chief Judge David R. Herndon on 9/10/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANTWOYN TERRELL SPENCER,
No. 14781-041,
Petitioner,
vs.

Case No. 14-CV-00893-DRH

JAMES CROSS, JR.,
Respondent.
MEMORANDUM AND ORDER

HERNDON, Chief District Judge:
Petitioner Antwoyn Terrell Spencer is currently incarcerated in the
Federal Correctional Institution at Greenville, Illinois, located within the
Southern District of Illinois. On August 4, 2014, Spencer filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). The petition is
aimed at upsetting Spencer’s conviction and sentence, by way of challenging
the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside or correct
his sentence without an evidentiary hearing.
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
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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 this action under 28 U.S.C. § 2241.
I.

Discussion

A. Synopsis of Procedural History
In 2007, a jury in the Southern District of Indiana convicted petitioner
Spencer of conspiring to distribute crack cocaine, and other related charges.
United States v. Spencer, et al., Case No. 07-cr-174-JRT-JJG-1 (D. Minn.). He
was sentenced 324 months in prison.

The conviction and sentence were

affirmed on direct appeal. See United States v. Spencer, 592 F.3d 866 (8th Cir.
2010).
Spencer, proceeding pro se, filed a timely motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255, raising issues of ineffective
assistance of trial and appellate counsel (Doc. 338 in the criminal case). More
specifically, he raised issues regarding the sufficiency of the evidence, the jury
instructions, trial counsel’s failure to object to remarks of a co-defendant’s
counsel regarding Spencer “hiding behind the Fifth Amendment,” and appellate
counsel’s failure to challenge the drug quantity and sentence. The government
was ordered to respond (Doc. 340 in the criminal case), but no evidentiary
hearing was held.
The Section 2255 motion was denied in April 2011 (Doc. 363 in the
criminal case).

The district court concluded that trial counsel’s purported

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errors were all raised on appeal and could not be recast under the guise of a
Section 2255 motion regarding ineffective assistance of counsel—consequently,
the issues could not rise to the higher standard under Strickland v.
Washington, 466 U.S. 668, 687 (1984). Similarly, the district court concluded
that appellate counsel had challenged the drug quantity and sentence on
appeal. The district court declined to issue a certificate of appealability. The
Court of Appeals for the Eighth Circuit also declined to issue a certificate of
appealability and the appeal was dismissed in October 2011 (Doc. 384 in the
criminal case).
Spencer then filed multiple motions pursuant to Federal Rule of Civil
Procedure 60, which were denied as successive Section 2255 motions (Docs.
406, 408). He now turns to Section 2241.
B. The Petition
In his Section 2255 petition for writ of habeas corpus Spencer continues
to try to upset his conviction and sentence by challenging the denial of his
initial motion under 28 U.S.C. § 2255 to vacate, set aside or correct his
sentence without an evidentiary hearing (Docs. 338, 363 in the criminal case).
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 [Section] 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

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(7th Cir. 2000)). See also Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998).
Petitioner does not attack the duration of his confinement, per se.
Therefore, Section 2241 does not readily appear to be the appropriate avenue
for relief. In effect, petitioner is attempting to use Section 2241 to allow him to
reopen the Section 2255 case in the District of Minnesota, and/or present a
successive, redundant Section 2255 petition attacking his conviction and
sentence, skirting the requirements for bringing a successive petition (see
Sections 2255(h) and (e)), and ignoring controlling precedent. Nevertheless, the
Seventh Circuit has recognized that it is possible, under very limited
circumstances, for a prisoner to challenge his federal conviction or sentence
under Section 2241.
Section 2255(e) contains a “savings clause” which authorizes a federal
prisoner to file a Section 2241 petition where the remedy under Section 2255 is
“inadequate or ineffective to test the legality of his detention.”

28 U.S.C. §

2255(e). See United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
“‘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)).
See also Prevatte, 300 F.3d at 798–99. Spencer seems to be arguing that he
did not have an unobstructed opportunity to argue his Section 2255 petition,
begging the question whether Section 2255 is inadequate if the petitioner is not
afforded a hearing.

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“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.” In re Davenport, 147 F.3d 605, 611 (7th
Cir. 1998). 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 Section 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 does not rely on a new statutory interpretation case; he does
not even rely upon a new constitutional case. Spencer also fails to assert that
there was a fundamental defect in his conviction and sentence, although that
is certainly his ultimate goal. He only argues—at most—that Section 2255 has
proved to be an ineffective remedy because he was denied a hearing.
“A [Section] 2255 petitioner is entitled to an evidentiary hearing on his
claim where he alleges facts that, if true, would entitle him to relief. A hearing,
though, is not required when ‘the files and records of the case conclusively
show that the prisoner is entitled to no relief.’ ” Lafuente v. United States, 617
F.3d 944, 946 (7th Cir. 2010) (quoting 28 U.S.C. § 2255(b)) (other internal

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citations omitted).

See also Rule 4(b) of the Rules Governing Section 2254

Cases in United States District Courts. Because the Section 2255 motion was
not summarily dismissed after preliminary review and the government was
directed to respond pursuant to Rule 5, Spencer perceives that he has been
denied substantive due process.
The lynchpin of Spencer’s argument fails because there is no absolute
right to a hearing under Section 2255(b) and Rule 4(b), as Spencer asserts.
Rule 8(a) of the Rules Governing Section 2254 Cases in United States District
Courts prescribes that if the Section 2255 petition is not summarily dismissed
upon initial review, the district court should review the answer and record of
prior proceedings and then determine whether an evidentiary hearing is
warranted. See also Almonacid v. United States, 476 F.3d 518 (7th Cir. 2007).
A court can even permit discovery, and still make its ruling without a hearing.
See Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010); see also Rules
6 and 7 of the Rules Governing Section 2254 Cases in United States District
Courts.

That is exactly what occurred—the government’s answer and the

record were examined, and the district court determined that no hearing was
necessary. A review of the order denying the Section 2255 motion reveals that
the district court’s decision rests entirely upon issues of law (see Doc. 363 in
the criminal case).
As noted above, the district court concluded that trial counsel’s
purported errors were all raised on appeal and could not be recast under the
guise of a Section 2255 motion, and the issue underpinning the argument that

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appellate counsel was ineffective—despite Spencer’s assertion to the contrary—
was also raised on appeal. Put succinctly, the district court concluded that, as
a matter of law, Spencer was not entitled to a second bite at the apple. No
evidentiary hearing was necessary for the Section 2255 motion to be denied on
this legal basis, therefore there was no need for an evidentiary hearing.
Petitioner does not take issue with merits of the district court’s decision itself.
Consequently, Spencer cannot utilize the savings clause and his Section 2241
petition fails on its merits.
II.

Conclusion

IT IS HEREBY ORDERED that, for the reasons stated, the petition (Doc.
1) is DISMISSED with prejudice. Judgment shall enter accordingly.
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
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); 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-

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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 SO ORDERED.
Signed this 10th day of September, 2014.

Digitally signed
by David R.
Herndon
Date: 2014.09.10
12:25:36 -05'00'
Chief Judge
United States District Court

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