Rouse v. USA

Filing 26

ORDER DISMISSING CASE and DENYING 6 Amended Petition for Writ of Habeas Corpus. The Clerk of Court is DIRECTED to enter judgment in favor of respondent. Signed by Judge David R. Herndon on 12/4/2017. (kmb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JESSE ROUSE,
Petitioner,
3:15-cv-00017-DRH-CJP

v.

DENESE WILSON,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
Petitioner Jesse Rouse, an inmate in the custody of the Bureau of Prisons,
filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging his
1994 conviction for aggravated sexual abuse of a minor. Now before the Court is
Rous’s amended petition under § 2241 (Doc. 6).
Rouse was convicted by a jury in the District Court of South Dakota of two
counts of aggravated sexual abuse of a minor in violation of 18 U.S.C. § 2241(c)
and was sentenced to thirty-three years imprisonment. As grounds for habeas
relief, Rouse claims that he has new evidence that shows he is actually innocent.
The new evidence consists of affidavits purportedly from his victims stating that
he never abused them.
Respondent argues that petitioner is precluded from bringing a §2241
petition because the evidence is not new and petitioner raised this claim years ago
in a motion for new trial.

1.

Relevant Facts and Procedural History
On direct appeal, a divided panel of the Eighth Circuit initially reversed and

remanded for a new trial. United States v. Rouse, 100 F.3d 560, 566 (8th Cir.
1996).

However, the Eighth Circuit granted rehearing and affirmed the

convictions. United States v. Rouse, 111 F.3d 561 (8th Cir. 1997).
The facts giving underlying petitioner’s conviction are described in detail in
the Eighth Circuit’s opinion affirming the convictions after rehearing. Rouse, his
brother, and two cousins were convicted of sexually abusing young female
relatives on the Yankton Sioux Indian Reservation:
The victims are granddaughters of Rosemary Rouse. During the summer
and fall of 1993, defendants lived at Rosemary's home on the Yankton
Sioux Reservation. The victims also lived or spent a great deal of time at
this home. In October 1993, five-year-old R.R. was placed with Donna
Jordan, an experienced foster parent, due to neglect and malnutrition. R.R.
disclosed apparent sexual abuse to Jordan, who reported to the Tribe's
Department of Social Services (“DSS”) (as Jordan was required to do) that
R.R. said she had been sexually abused. On January 10, 1994, DSS told
Jordan to take R.R. to therapist Ellen Kelson. After an initial interview,
Kelson reported to DSS (as Kelson was required to do) that R.R. had
reported acts of sexual abuse against herself and other children in the
Rouse home. On January 11, DSS removed thirteen children living in the
Rouse home and placed them in Jordan's foster home. Of the four who
disclosed sexual abuse by their uncles, T.R. was seven years old, L.R. was
six, R.R. was five, and J.R. was four and one-half. The fifth victim of the
alleged offenses, F. R., was a twenty-month-old infant.

Rouse, 111 F.3d at 565.
The children were examined by two physicians who found physical injuries
consistent with sexual abuse. The evidence at trial included the testimony of the
four oldest children and another child who witnessed acts of abuse, medical
evidence, medical experts for the government and for the defense, and the

testimony of an FBI agent who interviewed the children. Id, at 566. Petitioner
was ultimately convicted of abusing T.R. and J.R. Rouse, 100 F.3d at 566.
In February 1997, petitioner and his co-defendants filed a motion for new
trial in their criminal case, alleging that the victims had recanted their testimony.

United States v. Rouse, Case No. 94-cr-40015-LLP (D.S.D, February 19, 1997).
While the motion for new trial was pending, Rouse filed a motion to vacate,
set aside, or correct sentence pursuant to 18 U.S.C. § 2255. Rouse did not argue
in this motion that the victims had testified falsely or had recanted their
testimony. The motion was denied as untimely on September 20, 1999. Rouse
did not appeal. Rouse v. United States, Case No. 98-cv-4213-LLP (D. S.D. Sept.
20, 1999).
The district court held a lengthy evidentiary hearing on the motion for new
trial. The four older victims and the child who witnessed the abuse testified, along
with a number of other witnesses.
The Eighth Circuit affirmed the denial of the motion:
After reviewing the record as a whole, we conclude that the district court's
credibility findings are not clearly erroneous and the denial of the new trial
motion was not a clear abuse of discretion. By the time of the evidentiary
hearing, the children had been living with their mothers for at least two
years, within walking distance of their grandmother's home. These women
never believed the children's accusations, and testified on the defendants'
behalf at trial. The children knew their grandmother and mothers missed
the defendants. The children saw letters written by the uncles from prison
and spoke to the men by telephone. Family members drove the children to
interviews by Dr. Underwager, whose stated purpose was to free their
uncles from lengthy prison sentences. The district court's finding that the
recantations were the product of family pressure and therefore not credible
is overwhelmingly supported by this record. Combined with the defendants'
failure to refute the powerful medical evidence of abuse at trial, this finding

fully justified the court's conclusion “that there is no reasonable probability
that the recantations would produce an acquittal if a new trial were held.”
Accordingly, the district court did not abuse its discretion in denying the
defendants' joint motion for a new trial.

United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005).
2.

Grounds for Habeas Relief
Petitioner argues that he has “newly discovered evidence” which proves he

is actually innocent of the crimes of which he was convicted.

This evidence

consists of two affidavits purportedly signed by the victims of his crimes. The
affidavits are attached to Doc. 6 at pages 11 and 12.
The affidavits are identical except for the names of the affiants.

One is

signed by a person whose initials are J.R., and the other is signed by a person
whose initials are F.R. The affidavits state, in part:
As an adult at this time and place, I attest, affirm, and aver that, the
accused, Jessie [sic] Rouse never, at any time in the past, touched me,
molested me, sexually abused me, or harmed me in any way, despite false
statements that surrounded the unfounded and unsupported accusations of
his charge.
Both affidavits were signed on December 10, 2014. 1
3.

Legal Standards Applicable to Section 2241
Generally, petitions for writ of habeas corpus under 28 U.S.C. §2241 may

not be used to raise claims of legal error in conviction or sentencing, but are
limited to challenges regarding the execution of a sentence. See, Valona v. United

States, 138 F.3d 693, 694 (7th Cir.1998).

Rouse was convicted of abusing J.R. and T.R. The affidavits are signed by J.R. and F.R. F.R.
was only 20 months old at the time of the crimes.
1

A prisoner who has been convicted in federal court is generally limited to
challenging his conviction and sentence by bringing a motion pursuant to 28
U.S.C. §2255 in the court which sentenced him.

A motion under §2255 is

ordinarily the “exclusive means for a federal prisoner to attack his conviction.”

Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is generally
limited to bringing only one motion under §2255.

A prisoner may not file a

“second or successive” motion unless a panel of the appropriate court of appeals
certifies that 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.” 28 U.S.C. §2255(h).
However, it is possible, under very limited circumstances, for a prisoner to
challenge his federal conviction or sentence under §2241. 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.” The Seventh Circuit construed the savings clause in In

re Davenport, 147 F.3d 605, 611 (7th Cir. 1998):

“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.”

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
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).
Analysis
Petitioner Rouse is not entitled to habeas relief under §2241.
First, Petitioner does not meet the Davenport criteria because his claim that
he is actually innocent does not rest upon a change in the law that post-dates his §
2255 motion.
In order to show that § 2255 is inadequate to test the legality of his
detention, a petitioner must “first show that the legal theory he advances relies on
a change in law that both postdates his first § 2255 motion (for failure to raise a
claim the first time around does not render § 2255 ‘inadequate’) and ‘eludes the
permission in section 2255 for successive motions.’” Kramer v. Olson, 347 F.3d
214, 217 (7th Cir. 2003), citing Davenport, 147 F.3d at 611.
Here, petitioner’s argument relies not on a new rule of law, but on
supposedly newly discovered evidence.

Newly discovered evidence does not

permit the filing of a § 2241 petition here. 2 If the evidence actually were new, it
might be grounds for filing a second or successive § 2255 motion, see § 2255(h).
However, a second or successive § 2255 motion must be authorized by the court
of appeals for the district of conviction before it can be considered by the district
court. § 2244(b). Petitioner has not sought authorization from the Eighth Circuit
to file a successive or second § 2255 motion, no doubt because the District of
South Dakota has already rejected the victims’ recantations and the Eighth Circuit
has affirmed.
Here, of course, the evidence that petitioner relies upon is not new. Despite
the fact that his motion for new trial was based on the victims’ recantations,
petitioner argues that the two affidavits are “new” because they were signed by the
victims after they became adults. See, Doc. 22. That argument is baseless, to put
it mildly.
Petitioner cites McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), arguing that
case permits a claim of actual innocence based on new evidence to be brought at
any time. Doc. 6, p. 4. That is incorrect.

McQuiggin does not hold that a claim of actual innocence is a free-standing
basis for habeas relief. Rather, such a claim is only a gateway to consideration of
defaulted constitutional claims under §2254. McQuiggin, 133 S. Ct. at 1931. See

In Webster v. Daniels, 784 F.3d 1123, 1125 (7th Cir. 2015), the Seventh Circuit held that there is
no “absolute bar to the use of the safety valve found in section 2255(e) for new evidence that would
demonstrate categorical ineligibility for the death penalty.” The new evidence there allegedly
would have shown that it would be unconstitutional to execute the petitioner because he was
intellectually disabled. Webster was limited to the unique situation presented; it did not overrule
Davenport and does not open the door to § 2241 petitions based on new evidence in other
scenarios.
2

also, Gladney v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015)(“The Supreme Court
has not recognized a petitioner's right to habeas relief based on a stand-alone
claim of actual innocence.”)

McQuiggin holds that “a credible showing of actual innocence” may
overcome the bar of the one-year statute of limitations for filing a habeas petition
under 28 U.S.C. §2254. McQuiggin, 133 S. Ct. at 1931. The Supreme Court
reaffirmed the Schlup standard for a credible showing of actual innocence,
cautioning that “tenable actual-innocence gateway pleas are rare” and describing
the Schlup standard as “demanding” and “seldom met.” McQuiggin, 133 S. Ct. at
1928.
A credible claim of actual innocence “requires petitioner to support his
allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup v. Delo, 115 S. Ct.
851, 865 (1995). The Schlup standard permits habeas review of defaulted claims
only in the “extraordinary case” where the petitioner has demonstrated that “more
likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt—or, to remove the double negative, that more
likely than not any reasonable juror would have reasonable doubt.” House v. Bell,
126 S. Ct. 2064, 2077 (2006). The affidavits presented by petitioner here fall far
short of the Schlup standard, and they are not new evidence.

Further, by its terms, McQuiggin is limited to “an untimely first federal
habeas petition alleging a gateway actual-innocence claim.” The Supreme Court
expressly noted that different rules apply to second or successive petitions.

McQuiggin, 133 S. Ct. at 1933-1934. Petitioner Rouse is not a state prisoner who
will be deprived of any chance of federal court review of constitutional claims if he
is not allowed to proceed on a §2241 petition. Rather, he has already had an
opportunity for direct appeal and review under §2255.

He has already been

afforded full consideration of his claim of actual innocence based on the victims’
recantation. McQuiggin does not give him another shot.
Conclusion
Jesse Rouse’s Amended Petition for a Writ of Habeas Corpus under 28
U.S.C. §2241 (Doc. 6) is DENIED. The Clerk of Court is DIRECTED to enter
judgment in favor of respondent.
IT IS SO ORDERED.

Judge Herndon
2017.12.04
08:56:07 -06'00'
UNITED STATES DISTRICT COURT

Notice
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within sixty days of the entry of judgment. Fed. R. App.
P. 4(a)(1)(B). 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).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the 60-day appeal deadline. Other
motions, including a Rule 60 motion for relief from a final judgment, order, or
proceeding, do not toll the deadline for an appeal.
It is not necessary for 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).