Cunningham v. Cross

Filing 7

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 11/26/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SYLVESTER CUNNINGHAM,
# 11912-029,
Petitioner,
vs.
JAMES CROSS,
Respondent.

Case No. 14-cv-1104-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter comes before the Court for consideration of Petitioner Sylvester
Cunningham’s Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§

2241.1

Cunningham,

an

inmate

who

is

currently

confined

in

the

Federal Correctional Institution located in Greenville, Illinois, brings this habeas
action seeking to challenge his conviction and sentence under United States v.
Harden, 758 F.3d 886 (7th Cir. 2014).

He claims that the acceptance of his

felony guilty plea by a federal magistrate judge caused a structural defect in his
conviction that now warrants automatic reversal (Doc. 6, p. 6).
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
1

The Court entered an order striking the original Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 because it was not signed. Cunningham was ordered to file a signed amended
petition no later than November 25, 2014. The signed amended petition (Doc. 6) was timely filed
and is now ripe for review.
Page 1 of 7

district judge, “[i]f it plainly appears from the face of the petition and any exhibits
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. For the reasons set forth below, the petition
shall be DISMISSED.
I.

Background

On January 25, 2012, Cunningham was indicted on one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (Doc. 6, p. 2). United States v. Cunningham, Case No. 12-cr-00002LRR-1 (N.D. Ia. 2012) (“criminal case”). On March 20, 2012, he consented to
appear before a federal magistrate judge and enter a plea of guilty to the charge
(Docs. 22-23, criminal case). At the conclusion of the hearing, Magistrate Judge
Jon S. Scoles issued a “Report and Recommendation,” in which he recommended
that the federal district judge accept Cunningham’s guilty plea (Doc. 24, criminal
case).

The parties were permitted to file objections to the Report and

Recommendation on or before April 3, 2012 (Id.). No objections followed.
On April 4, 2012, Chief Judge Linda R. Reade accepted the guilty plea
(Doc. 26, criminal case).

Judgment was entered on August 16, 2012, and

Cunningham was sentenced to a term of 60 months of imprisonment with the
Federal Bureau of Prisons (“BOP”) (Doc. 49, criminal case). Cunningham filed an
appeal

on

October

17,

2014,

and

Page 2 of 7

the

appeal

is

pending.

See United States v. Cunningham, Appeal No. 14-3329 (8th Cir. 2014).2
II.

Amended Habeas Petition

In the amended petition, Cunningham claims that the magistrate judge’s
acceptance of his felony guilty plea violated the Federal Magistrates Act (“FMA”),
28 U.S.C. § 636, Federal Rule of Criminal Procedure 59, and his due process
rights (Doc. 6, pp. 3-6). According to the petition, a magistrate judge was not
authorized under the FMA to accept the felony guilty plea. Even if there was no
prejudice or harm, Cunningham maintains that he is entitled to automatic
reversal of his conviction and sentence (Doc. 6, pp. 5-6).
III.

Discussion

The instant petition raises a claim of legal error in Cunningham’s conviction
and sentence. However, petitions for writ of habeas corpus under Section 2241
are generally not used for this purpose.
138 F.3d 693, 694 (7th Cir. 1998).

See Valona v. United States,

Section 2241 petitions usually challenge 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 typically the “exclusive means for a
federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217
(7th Cir. 2003). See also Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012)

2

Cunningham also filed a motion that was construed as a Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 and denied by the United States District Court for the Northern
District of Iowa on July 26, 2013. See Cunningham v. United States, Case No. 13-cv-00047-LRR
(N.D. Ia. 2013).
Page 3 of 7

(citing

Walker

v.

O’Brien,

216

F.3d

626,

629

(7th

Cir.

2000)).

However, Section 2255 generally limits a prisoner to one challenge of his
conviction and sentence under Section 2255.

Cunningham did not disclose

whether he filed a Section 2255 motion prior to bringing the instant Section 2241
petition.3
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). “‘Inadequate or ineffective’
means that ‘a legal theory that could not have been presented under [Section]
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); In re Davenport, 147 F.3d
605, 608 (7th Cir. 1998)).
Cunningham invokes the “savings clause” in this case.

As for its

applicability, the Seventh Circuit has held that Section 2255 is only inadequate or
ineffective when three requirements are satisfied. See In re Davenport, 147 F.3d
at 610-12.

First, a petitioner must show that he relies on a new statutory

3

According to this Court’s review of the Public Access to Court Electronic Records (“PACER”)
website (www.pacer.gov) on November 26, 2014, Plaintiff filed a motion under Section 2255 that
was converted to a petition under Section 2241 and dismissed on July 26, 2013. See
Cunningham v. United States, Case No. 13-cv-00047-LRR (N.D. Ia. 2013). See also Bova v. U.S.
Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice public
records available on government websites) (collecting cases).
Page 4 of 7

interpretation case rather than a constitutional case.

Secondly, the case was

decided after the petitioner’s first Section 2255 motion but is retroactive.
Lastly, the alleged error resulted in a “fundamental defect” in the petitioner’s
conviction or sentence that is grave enough to be deemed a miscarriage of justice.
Id. See also Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); see also
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012).

Under this standard,

Section 2241 cannot provide Cunningham with the relief he seeks.
His reliance on United States v. Harden, 758 F.3d 886 (7th Cir. 2014), is
misplaced.

Harden is premised on longstanding Supreme Court precedents.

See, e.g., Peretz v. United States, 501 U.S. 923, 931-33 (1991); Johnson v. Ohio,
419 U.S. 924, 925 (1974); Brady v. United States, 397 U.S. 742, 748 (1970).
Cunningham has raised this claim on appeal, and the appeal is now pending.
He could have raised this claim in a Section 2255 motion. There is no indication
that he did, or that Section 2255 was inadequate for this purpose.
This case is clearly distinguishable from Harden.

In Harden, the

Seventh Circuit determined that, under the FMA, magistrate judges are “not
permitted to accept guilty pleas in felony cases and adjudge a defendant guilty.”
Harden, 758 F.3d at 888-91. The district judge did not make a decision to accept
or

reject

Harden’s

felony

guilty

plea,

after

reviewing

a

report

and

recommendation. The magistrate judge accepted Harden’s felony guilty plea.
Cunningham’s case is different. Although he pleaded guilty at a hearing
before

a

magistrate

judge,

the

magistrate

Page 5 of 7

judge

issued

a

report

and

recommendation regarding the guilty plea.

The district judge then had an

opportunity to consider—and accept or reject—the recommendation, after the
parties had an opportunity to file objections. In Cunningham’s case, the district
court accepted the guilty plea, sentenced Cunningham, and entered a judgment.
The Seventh Circuit did not question this methodology in Harden, and
Cunningham acknowledged in his amended petition that the Eighth Circuit also
condones this procedure.

See United States v. Torres, 258 F.3d 791, 796

(8th Cir. 2001).
And

although

Harden

was

decided

on

statutory

grounds

alone,

Cunningham presents no other arguments that would entitle him to relief under
Section 2241. The instant petition merely alludes to Federal Rule of Criminal
Procedure 59 and due process violations.

However, Cunningham develops no

argument supporting these grounds for relief.4

The Court is not obligated to

make this argument for Cunningham, and it will not do so.
Based on the foregoing discussion, the Section 2241 petition shall be
dismissed.
IV.

Disposition

IT IS HEREBY ORDERED that the Amended Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 6) is summarily DISMISSED on the
merits with prejudice.

Respondent JAMES CROSS is also DISMISSED with

prejudice.

4

Presumably, Cunningham mentioned these alternative bases for relief because they are
mentioned in Harden. See Harden, 758 F.3d at 887.
Page 6 of 7

If petitioner wishes to appeal the dismissal of his habeas petition, 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-day5 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.
Signed this 26th day of November, 2014.

David R.
Herndon
2014.11.26
13:16:17 -06'00'
District Judge
United States District Court

5

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).
Page 7 of 7