Graves v. Walton

Filing 5

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 10/20/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CURTIS GRAVES,
# 07039-028,
Petitioner,
vs.

Case No. 14-cv-1034-DRH

JEFFREY S. WALTON,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Curtis Graves, an inmate in the Federal Correctional Institution
located in Marion, Illinois, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2241 to challenge his enhanced sentence as a career offender. Graves claims
that the United States Supreme Court’s decision in Descamps v. United States,
570 U.S. ---, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (June 20, 2013), like several
Supreme Court decisions before it, calls into question his status as a career
offender and, consequently, his sentence.

Graves has also filed a motion to

supplement the Section 2241 petition (Doc. 3), in order to offer additional
authority in support of this claim.
This matter is now before the Court for preliminary review of the habeas
petition. Rule 4 of the Federal Rules Governing Section 2254 Cases in United
States District Courts provides that upon preliminary consideration by the district
judge, “[i]f it plainly appears from the face of the petition and any exhibits

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annexed to it that the petitioner is not entitled to relief in the district court, the
judge shall make an order for its summary dismissal and cause the petitioner to
be notified.” Rule 1(b) of those Rules gives this Court the authority to apply the
rules to other habeas corpus cases, such as this action brought pursuant to
Section 2241. For the reasons set forth below, the petition shall be DISMISSED.
I.

Background

Following a jury trial in 2004, Graves was convicted of two counts of
distributing 50 or more grams of crack cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)(iii). See United States v. Graves, No. 02-cv-00127 (S.D.
Ind. 2002) (“criminal case”) (Doc. 1). At sentencing, his base offense level was
determined to be a 34 because of the drug quantities involved.

However, the

sentencing court increased the offense level to 37, after determining that Graves
qualified as a career offender under United States Sentencing Guidelines
(“U.S.S.G.”) § 4B1.1.

Graves’ offense level, when combined with his criminal

history category (VI), led to a sentencing range of 360 months to life. He was
sentenced to concurrent terms of 360 months on each count (Doc. 1-2, criminal
case).
Graves’ conviction was affirmed on appeal by the United States Court of
Appeals for the Seventh Circuit. See United States v. Graves, 418 F.3d 739 (7th
Cir. 2005). His sentence was also affirmed, after a limited remand pursuant to
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for review of the
sentence in light of United States v. Booker, 543 U.S. 220 (2005). See United

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States v. Graves, 184 Fed. Appx. 579 (7th Cir. 2006) (unpublished decision).
The Seventh Circuit affirmed the sentence on June 19, 2006. Id.
On appeal, Graves argued “that the career offender enhancement should
not have been used to determine his sentence because he did not have the
requisite number of prior felony convictions.” See Graves, 418 F.3d at 744. He
maintained that two of his prior felony convictions for aggravated battery were so
closely related to one another that they were effectively a single conviction. The
Seventh Circuit considered the issue at length before concluding that “the district
court [did not] err in finding that Graves’ two prior felonies were not ‘related’;
thus, sentencing him as a career offender was proper.” Id. at 745.
Graves collaterally attacked his sentence by filing a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.

Graves v. United

States, No. 07-cv-01217 (S.D. Ind., filed Sept. 24, 2007) (Doc. 1). Among other
things, Graves challenged his status as a career offender, but couched this
challenge in terms of the ineffective assistance of his counsel. After finding that
Graves was attempting to breathe new life into a stale argument, the district court
held that the “correctness of his sentence as a career offender was considered and
affirmed in his direct appeal” (Doc. 23, p. 5).

The district court denied the

Section 2255 motion with prejudice on February 8, 2011, and also declined to
issue a certificate of appealability (Doc. 23, p. 7).

The Seventh Circuit denied

Graves’ request for a certificate of appealability on August 3, 2011. Graves v.
United States, No. 11-1768 (7th Cir. 2011) (Doc. 9).

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Graves filed a second collateral attack on June 12, 2014. See Graves v.
United States, No. 14-cv-00977 (S.D. Ind., filed June 12, 2014). Graves did not
receive the Seventh Circuit’s prior authorization to file the successive motion.
After noting this fact, the district court dismissed the action for lack of
jurisdiction on June 30, 2014, and declined to issue a certificate of appealability
(Doc. 2). The instant petition followed.
II.

Habeas Petition

In his Section 2241 petition (Doc. 1) and his motion to supplement (Doc.
3), Graves again attacks his sentence. He challenges the predicate offenses giving
rise to his status as a career offender. Graves argues that his two convictions for
aggravated battery were so closely related to one another that they should have
been treated as a single felony when assessing Graves’ status as a career offender;
alternatively, one of the convictions for aggravated battery should have been
deemed an attempted aggravated battery, and not a qualifying conviction, after
applying the analytical framework set forth in Descamps. Under either of these
theories, Graves argues that he is not a career offender and should not have been
sentenced as such (Doc. 1, pp. 12-13).
Graves now invokes the “savings clause” under Section 2255, by arguing
that Section 2255 is “inadequate or ineffective” to test the validity of his sentence
because new case law demonstrates that he is “actually innocent” of being a career
offender.

Graves points to several United States Supreme Court and Seventh

Circuit opinions in support of his argument. See Descamps v. United States,

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570 U.S. ---, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) (June 20, 2013); Begay
v. United States, 553 U.S. 137 (2008); Brown v. Caraway, 719 F.3d 583, 588 (7
Cir. 2013); Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir. 2011).
However, he relies primarily on Descamps (Doc. 1, pp. 6-8).
Graves specifically argues that Descamps calls into question the analytical
framework used to determine whether his prior convictions qualified as predicate
offenses.

He asserts that Descamps is retroactively applicable to his case.

Finally, he argues that his enhanced sentence amounts to a miscarriage of justice
(Doc. 1, p. 7). He asks this Court to find that he is not a career offender, and his
sentence has been served.
III.

Discussion

Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may
not be used to raise claims of legal errors in conviction or sentencing. See Valona
v. United States, 138 F.3d 693, 694 (7th Cir. 1998). They are typically limited to
challenges regarding the execution of a sentence. See id. A federally convicted
person may instead challenge his conviction and sentence by bringing a motion
pursuant to 28 U.S.C. § 2255 in the court that sentenced him, and a Section 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).
However, Section 2255 generally limits a prisoner to one challenge of his
conviction and sentence under Section 2255. A prisoner may not file a “second or
successive” motion unless a panel of the appropriate court of appeals certifies that

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such motion contains either: (1) newly discovered evidence “sufficient to establish
by clear and convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense;” or (2) “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” See 28 U.S.C. § 2255(h).
Under very limited circumstances, a prisoner may challenge his federal
conviction or sentence under Section 2241. See 28 U.S.C. § 2255(e). Section
2255(e) contains a “savings clause” that 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.”

Id.; see also United States

v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).

“A procedure for post-

conviction 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).

Graves invokes the “savings clause” in this case.
In order to fit within the savings clause following Davenport, a petitioner
must satisfy three conditions. Id. 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

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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 F.3d
638, 640 (7th Cir. 2012).
The instant Section 2241 petition must be dismissed for failure to satisfy
the second Davenport requirement.

In his Section 2241 petition, Graves

primarily relies on the Supreme Court’s recent decision in Descamps v. United
States, 570 U.S. ---, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (June 20, 2013). Had
the sentencing court properly applied the analytical framework announced in
Descamps, he argues, it would have concluded that he had only a single predicate
offense (i.e., either because one of the aggravated battery convictions should have
been characterized as an attempted aggravated battery or because the two
aggravated battery convictions were so related as to constitute only a single
conviction).
Graves’ reliance on Descamps is misplaced. In Descamps, the Supreme
Court did not signal that the case broke new legal ground or should be applied
retroactively.

In fact, the Seventh Circuit recently stated that “Descamps is

explicitly an extension of existing Supreme Court caselaw.”

See Gieswein v.

Walton, No. 14-2247 (7th Cir. 2014) (Doc. 15-1, p. 2). Graves was certainly not
foreclosed from raising these arguments in his direct appeal or in his collateral
attacks. In fact, he did so. Graves is, once again, recycling old arguments. He
had ample opportunity to present these arguments, and his failure to prevail on
them does not render Section 2255 inadequate or ineffective.

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Under the

circumstances, the Court declines Graves’ invitation to revisit his sentence on the
strength of Descamps.
His motion to supplement (Doc. 3) also asks the Court to consider his
arguments under Begay v. United States, 553 U.S. 137 (2008).

Begay is a

statutory interpretation case, and it has been applied retroactively. However, it is
not “new.” Begay was decided shortly after Graves’ first Section 2255 motion
was filed on September 24, 2007, and Graves could have addressed Begay in that
proceeding--long before Graves’ first Section 2255 motion was denied on
February 8, 2011.

Further, the underlying arguments, as emphasized above,

were addressed in Graves’ direct appeal and collateral attack.
None of the other cases cited by Graves warrant the relief he now seeks, for
the same reason. They represent little more than an extension of the same line of
cases, already relied on in analyzing Graves’ career offender status.

Because

Graves has not demonstrated that Section 2255 is “inadequate or ineffective,” he
cannot pursue his claims under Section 2241.
IV.

Disposition

IT IS HEREBY ORDERED that the petition is summarily DISMISSED on
the merits with prejudice.

Respondent JEFFREY S. WALTON is also

DISMISSED with prejudice.
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

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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-day 1 appeal
deadline. To appeal the dismissal of a Section 2241 petition, it is not necessary
for petitioner to obtain a certificate of appealability. 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.

Digitally signed by
David R. Herndon
Date: 2014.10.20
14:55:38 -05'00'

DATED: October 20, 2014

District Judge
United States District Court

1

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).
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