Robinson v. Cross

Filing 5

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/25/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RANDOLPH W. ROBINSON,
#91425-020,
Petitioner,
vs.
JAMES N. CROSS, Jr.
Respondent.

Case No. 15-cv-00191-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Randolph Robinson, who is currently incarcerated in the Federal
Correctional Institution in Greenville, Illinois, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). Robinson challenges his 2006
conviction for the use of a firearm during the commission of a bank robbery.
He asks this Court to set aside the conviction in light of the Supreme Court’s
recent decision in Rosemond v. United States, --- U.S. ---, 134 S. Ct. 1240 (2014).
According to the petition, Robinson’s conviction was based on aiding and abetting
liability, and the jury instructions allowed the jury to convict him without first
finding that he had any actual advance knowledge that a co-conspirator would use
or carry a gun during a crime of violence.
This matter is now before the Court for a preliminary review of the petition.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts provides that, upon preliminary review by the district judge, “[i]f it plainly

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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 this action.
I.

Habeas Petition

According to the petition, an African-American male entered Wachovia Bank
in Columbus, Georgia, on September 9, 2005 (Doc. 1, p. 4).

The individual

carried a “box-type device” into the bank, set it down, and claimed that it was a
bomb. He ordered everyone “not to move and give me all your hundreds” (Id.).
As he proceeded down the teller line, the individual pulled out an automatic pistol
and pointed it at a witness. Several others observed the gun. The bank robber
was subsequently identified as John McGregory McQueen. He was arrested and
indicted on multiple counts, along with two co-defendants.
Robinson was one of these co-defendants. On October 20, 2005, Robinson
was charged with the following crimes: (1) conspiracy to defraud the United States
in violation of 18 U.S.C. § 371; (2) bank robbery by force or violence in violation
of 18 U.S.C. § 2113(a); (3) use of a firearm during the commission of a crime in
violation of 18 U.S.C. § 924(c); and (4) unlawful transport of firearms in violation
of 18 U.S.C. § 922(g). See United States v. Robinson, et al., No. 08-cv-90009CDL (M.D. Ga. 2005) (“criminal case”). Following a jury trial, he was found guilty
of the first three offenses on September 14, 2006 (Doc. 122, criminal case).

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On December 18, 2006, Robinson was sentenced to a total prison term of
161 months, which consisted of the following: 60 months of imprisonment and
5 years of supervised release for Count 1; 77 months of imprisonment, to run
concurrently with Count 1, and 5 years of supervised release for Count 2; and
84 months of imprisonment, to run consecutively with Counts 1 and 2, and 5
years of supervised release for Count 3 (Doc. 134, criminal case). Robinson was
also ordered to pay restitution in the amount of $7,565.11, along with a $100.00
mandatory court assessment.

Judgment was entered against Robinson on

December 28, 2006 (Doc. 137, criminal case).
He filed a direct appeal on January 3, 2007. United States v. Robinson,
No. 07-10100 (11th Cir. 2007) (Doc. 138, criminal case). Robinson challenged
the district court’s exclusion of certain testimony as inadmissible hearsay and the
district court’s refusal to read a jury instruction addressing his alibi defense
(Doc. 156-2, p. 2, criminal case).

The Eleventh Circuit affirmed the district

court’s decisions on August 16, 2007 (Doc. 156-2, criminal case).
Robinson sought relief pursuant to 28 U.S.C. § 2255 on two occasions:
first, in 2008, on ineffective assistance and evidentiary grounds (Doc. 159,
criminal case), and, second, in 2014, under Rosemond v. United States, --- U.S. --, 134 S. Ct. 1240 (2014). Relief was denied (Docs. 168, 172, 185, criminal
case).
In the instant Section 2241 petition, Robinson challenges his conviction for
the use of a firearm during the commission of a crime in violation of 18 U.S.C.

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§ 924(c).

Specifically, Robinson contends that a recent change in the law

announced in Rosemond v. United States, --- U.S. ---, 134 S. Ct. 1240 (2014),
requires the government to establish that a defendant had prior knowledge of a
co-conspirator’s intent to carry a gun during the commission of a crime, in order
to sustain a conviction under 18 U.S.C. § 924(c), based on aiding and abetting
liability. Id. at 1248-51. Robinson argues that he did not participate in the actual
robbery, consent to the use of a firearm in the commission of a crime, or have any
knowledge that a gun would be used. Even so, the jury found him guilty of the
firearm offense because he was part of the robbery. The jury instructions that
pertain to this matter have been revised in light of Rosemond. Robinson now
asserts that the “savings clause” under 28 U.S.C. § 2255(e) allows him to proceed
with his claim that this Court should vacate his conviction under 18 U.S.C.
§ 924(c).
II.

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 [Section] 2241
applies to challenges to the fact or duration of confinement.” Hill v. Werlinger,
695 F.3d 644, 645 (7th Cir. 2012); see also Garza v. Lappin, 253 F.3d 918, 921
(7th Cir. 2001) (“In general, federal prisoners who wish to attack the validity of
their convictions or sentences are required to proceed under § 2255.”).

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Robinson is clearly attacking his conviction, and thus a motion brought pursuant
to Section 2255 is typically the proper avenue of relief.
Under limited circumstances, a prisoner may use Section 2241 to challenge
his conviction. Section 2255 contains a “savings clause” which allows a 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). The mere fact that a petitioner may be barred from bringing a second
Section 2255 petition is not, in and of itself, sufficient to render Section 2255
inadequate. In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998). Instead, a
petitioner must demonstrate the inability of a Section 2255 motion to cure the
defect in the conviction. Id. at 611.
A petitioner must satisfy three conditions to come within the savings clause:
first, he must rely on a statutory interpretation case rather than a constitutional
case; second, he must rely on a retroactive decision that he could not have
invoked in his first Section 2255 motion because the position was “foreclosed by
binding precedent” at the time; and third, he must show that there has been a
“fundamental defect” in his conviction that is grave enough to be deemed a
miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586-87 (7th Cir. 2012).
Robinson

relies

on

the

Supreme

Court’s

decision

in

Rosemond.

Upon review of Rosemond in light of the petition, the Court concludes that further
review of this matter is necessary, given the current landscape of the law.

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Without commenting

on

the

merits

of

Rosemond’s

petition,

the

Court concludes that the petition survives preliminary review under Rule 4 and
Rule 1(b) of the Rules Governing Section 2254 Cases in United States District
Courts. Accordingly, a response shall be ordered.
III.

Disposition

IT IS HEREBY ORDERED that Respondent Warden James Cross, Jr. shall
answer the petition or otherwise plead on or before April 27, 2015. 1

This

preliminary order to respond does not, of course, preclude the Government from
raising any objection or defense it may wish to present. Service upon the United
States Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St.
Louis, Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by
Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to
such a referral.
Petitioner

is

ADVISED

of

his

continuing

obligation

to

keep

the

Clerk (and each opposing party) informed of any change in his whereabouts
during the pendency of this action. This notification shall be done in writing and
1

The response date Ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only. See SDIL-EFR 3.

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not later than seven days after a transfer or other change in address occurs.
Failure to provide such notice may result in dismissal of this action.
See FED. R. CIV. P. 41(b).

Digitally signed by
David R. Herndon
Date: 2015.03.25
15:05:04 -05'00'

IT IS SO ORDERED.
DATED: March 25, 2015

United States District Court

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