Chaney v. Cross

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/13/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARLTON LAMONT CHANEY,
Petitioner,
vs.

Case No. 3:15-cv-00211-DRH

JAMES N. CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Carlton Chaney is currently incarcerated in the Federal
Correctional Institution in Greenville, Illinois. (Doc. 1 at 1.) Proceeding pro se,
Chaney has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241, challenging his 1997 conviction in the Southern District of Indiana for
using or carrying a firearm during the commission of a crime of violence. See

United States v. Chaney, 165 F.3d 33 (7th Cir. 1998). Chaney contends that his
conviction should be set aside in light of the Supreme Court’s recent decision in

Rosemond v. United States, 134 S. Ct. 1240 (2014), as his conviction was based
on aiding and abetting liability and the jury instructions allowed the jury to
convict Chaney without finding that he had advance knowledge that a coconspirator would use or carry a gun during a crime of violence. (Doc. 1 at 7.)
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.
Procedural History
On April 18, 1997, at approximately 9:20 A.M., three masked AfricanAmerican males robbed the NBD Bank in Indianapolis, Indiana.

Chaney, 165

F.3d at *1. One robber stood in the lobby area, waived a gun, and told everyone
in the bank to keep their hands up. Id. The other two robbers rushed behind the
teller area, and one of those two pointed a gun at a teller and dumped cash from
the drawers into a pillowcase. Id. The robbers then ran out of the bank, jumped
into a dark blue Cadillac that had been stolen earlier that day, and sped away. Id.
Two civilians witnessed the bank robbery and earnestly gave chase. The
first, James Nulf, was the husband of one of the bank employees. Id. He followed
the robbers until they stopped on Inland Drive and watched as the robbers stood
outside the Cadillac and talked to each other. Nulf then saw one of the robbers
walk east on Inland Drive, while the other two drove away in the Cadillac. Id.
The second witness, Donna Dauby, was driving by the bank when she saw the
robbers leave the bank and speed off.
robbers to Inland Drive.

Id.

Id.

Like Nulf, she also followed the

As she drove towards the Cadillac, a Chevrolet

Suburban drove toward her, veered around the Cadillac, and sideswiped the

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driver’s side of Dauby’s vehicle. Id. The Suburban then careened off of Dauby’s
vehicle and crashed into a nearby house. Id.
By the time police arrived at the scene, the Suburban was abandoned, but
police did find a black mask in the vehicle, along with $16,890 stuffed in a pink
and white pillowcase, an Indiana identification card for “Jesse James” with
Carlton Chaney’s picture, and various car repair documents (some bearing the
name “Troy Smith”). Id. Six fingerprints, later identified as Chaney’s, were on
the inside of the Suburban. Id. As for the stolen Cadillac, it was recovered in a
nearby apartment complex: its rear window was broken and covered with duct
tape, and the ends of the duct tape matched the end of a roll found in the
Suburban. Id.
At 9:30 A.M. on the same day, an unmasked African-American male entered
the home of Mary and William Howe, threatened them with a gun, and demanded
the keys to their car. Id. The Howe’s residence was located one street away from
the abandoned Suburban. Id. The robber took the Howe’s car and drove off. Id.
While Mr. Howe could not identify the assailant, Mrs. Howe ultimately identified
Chaney as the man who entered the Howes’ home. Id.
Police arrested Chaney on May 2, 1997, as he left an apartment that he had
leased in the name of Michael Troy Smith. Id. at *2. During the arrest, Chaney
fled from the police in his car, pointed his gun at officers when he was stopped,
and then fled again. Id. He was ultimately captured when he lost control of his
vehicle. Id. When arrested, Chaney was carrying an Indiana driver’s license in

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the name of Troy Smith (with his picture on it), and police found a handgun on
the floor of his vehicle. Id. Chaney was charged with bank robbery, carjacking,
using and carrying a firearm in relation to a bank robbery, using and carrying a
firearm in relation to carjacking, and two counts of unlawful possession of a
firearm by a felon. Id. The Government ultimately withdraw one of the unlawful
possession counts, and Chaney was found guilty of the remaining counts. Id. He
was sentenced to a total of 430 months in prison. Id. at *3.
Chaney appealed his conviction on the grounds that a witness’s reference to
his previous incarceration during trial constituted reversible error. The Seventh
Circuit

rejected

that

challenge

and

affirmed

his

conviction,

citing

the

“overwhelming” evidence of Chaney’s guilt. Chaney, 165 F.3d at *4. Chaney then
sought relief pursuant to 28 U.S.C. § 2255 on two occasions: first in
approximately 2002 on ineffective assistance grounds, and second in 2005 on
multiple grounds. (Doc. 1 at 13.) Neither petition afforded him relief. Chaney
has also filed several 28 U.S.C. § 2241 petitions with this Court and others; those,
too, have been unfruitful. See, e.g., Chaney v. Cross, No. 13-cv-223, 2014 WL
1041036, at *1 (S.D. Ill. Mar. 18, 2014); Chaney v. United States, No. 07-cv-575,
2008 WL 818565, at *1 (S.D. Ill. Mar. 21, 2008); Chaney v. O’Brien, No. 7:07-cv00121, 2007 WL 1189641, at *1 (W.D. Va. Apr. 23, 2007); Chaney v. O’Brien, No.
7:06-cv-00120, 2006 WL 4595798, at *1 (W.D. Va. Mar. 7, 2006).
On February 27, 2015, Chaney filed a § 2241 petition in this Court. (Doc. 1
at 1.)

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Discussion
Chaney’s instant § 2241 petition claims that the testimony presented at his
1997 trial only “established that two out of [the] three robbers were armed during
the bank robbery,” and that no one “identified [Chaney] as being one of the
robbers” that was armed. (Doc. 1-1 at 9.) Given this testimony, Chaney claims
that his conviction for aiding and abetting the use of a firearm during the 1997
robbery should be vacated in light of Rosemond v. United States, as the
instructions given to the jury on aiding and abetting the armed robbery did not
require the jury to find that Chaney “actively participated in the bank robbery with
‘advanced knowledge’ that his alleged cohorts would carry guns during the course
of the offense.” (Id.)
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 § 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.”). Here, Chaney
is attacking his conviction, and thus a § 2255 motion is typically the proper
avenue of relief.
However, under limited circumstances, a prisoner may use § 2241 to
challenge his conviction. Section 2255 contains a “savings clause” which allows a

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prisoner to file a § 2241 petition where the remedy under § 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 § 2255 petition is not,
in and of itself, sufficient to render § 2255 inadequate. In re Davenport, 147 F.3d
605, 609-10 (7th Cir. 1998). Instead, a petitioner must demonstrate the inability
of a § 2255 motion to cure the defect in the conviction. Id. at 611. In the end, a
petitioner must establish three points 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 § 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).
For these points, Chaney relies on the Supreme Court’s decision in

Rosemond v. United States. Rosemond dealt with a “drug deal gone bad” – three
individuals, Rosemond among them, drove to a park to sell marijuana, but when
the would-be purchaser punched one of the individuals and took off with the
marijuana without paying his due, one of the sellers exited the vehicle and fired
shots at the thief. 134 S. Ct. at 1243. The shooter reentered the vehicle, and all
three sellers gave chase after the thief, but were apprehended by police before they
could catch him.

Id. For his part, Rosemond was charged with violating 18

U.S.C. § 924(c) by using a gun in connection with a drug trafficking crime, or

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aiding and abetting that offense under 18 U.S.C. § 2.

Id.

The Government

prosecuted Rosemond under two theories: either Rosemond was the shooter, or
he aided the shooter in connection with the drug trafficking crime. Id. at 124344. The jury was instructed that it could convict Rosemond if the “defendant
knew his cohort used a firearm in the drug trafficking crime,” and the “defendant
knowingly and actively participated in the drug trafficking crime.” Id. at 1244.
The jury convicted Rosemond of violating § 924(c) via a general verdict, and the
Tenth Circuit affirmed. Id. at 1244-45. The Supreme Court, however, vacated
the Tenth Circuit’s judgment, holding that an unarmed defendant must have
advance knowledge that his confederate would carry a gun to impose liability. Id.
at 1245, 1249-50.
To be sure, Rosemond satisfies at least one of the savings clause
requirements – it was a statutory interpretation case. However, Chaney’s petition
runs into trouble on other points, including the issue of retroactivity. This Court,
in Montana v. Cross, No. 14-cv-1019, 2014 WL 5091708, at *3 (S.D. Ill. Oct. 10,
2014), held that Rosemond was not retroactive, and almost every other court to
address the point agrees. 1 If nothing had changed since Montana, dismissal of
Chaney’s petition at screening would be proper. However, since Montana, one

E.g., Bey v. Hollenback, No. 5:14-HC-2016, 2015 WL 859575, at *3 (E.D.N.C. Feb. 27, 2015);
Metz v. United States, No. 14-cv-3081, 2015 WL 566766, at *3 (W.D. La. Feb. 9, 2015); Elwood v.
United States, No. 14-cv-3097, 2015 WL 566773, at *3 (W.D. La. Feb. 9, 2015); Rodriguez v.
Thomas, No. 1:14-cv-1121, 2015 WL 179057, at *5 (M.D. Pa. Jan. 14, 2015); Moreno v. SnyderMorse, No. 14-cv-106, 2015 WL 82418, at *4 (E.D. Ky. Jan. 6, 2015); Guardado-Mezen v.
Copenhaver, No. 1:14-cv-01806, 2014 WL 6885999, at *4 (E.D. Cal. Dec. 4, 2014); Taylor v.
Sepanek, No. 14-cv-160, 2014 WL 6705408, at *4 (E.D. Ky. Nov. 26, 2014); Douglas v. Butler,
1

No. 14-cv-177, 2014 WL 6633230, at *6 (E.D. Ky. Nov. 21, 2014); Taniguchi v. Butler, No. 14-

cv-120, 2014 WL 5063748, at *5 (E.D. Ky. Oct. 8, 2014).

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district court in the Seventh Circuit has ruled that “Rosemond should apply
retroactively,” at least for a § 2255 petition. United States v. Greene, No. 14-C431, 2015 WL 347833, at *1 (E.D. Wis. Jan. 23, 2015). More importantly, the
Government has conceded retroactivity before the district court in Greene and the
Seventh Circuit in the Montana briefing on appeal, and the matter is now before
the Seventh Circuit for consideration. Given the current landscape of the law and
the fact that this case is at the preliminary stage of review, the retroactivity point
will be deferred.
To employ § 2241, Chaney has another hurdle to surmount: he must show
that there is a defect in his conviction so significant as to qualify as a miscarriage
of justice, as would be the case if he was “imprisoned for a nonexistent offense.”

In re Davenport, 147 F.3d at 611. After Rosemond, a defendant can be convicted
of aiding and abetting a person who uses or carries a firearm in relation to a
crime of violence if the defendant has knowledge that a cohort will use a gun “at a
time the accomplice can do something” with that knowledge – “most notably, opt
to walk away.”

134 S. Ct. at 1249-50.

If the jury instructions or the record

permitted a conviction in a manner keeping with Rosemond, Chaney will have
difficulty establishing that he was convicted of a nonexistent offense. However, all
of the jury instructions and the record are not yet before the Court, and thus
Chaney’s petition passes preliminary screening.

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Disposition
IT IS HEREBY ORDERED that respondent shall, within thirty (30) days of
receipt of this application for Writ of Habeas Corpus, answer and show cause why
the writ should not issue.

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 Magistrate Judge Clifford J. Proud for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk (and
Respondent) informed of any change in his whereabouts during this action. This
notification shall be done in writing and not later than seven days after a transfer

Digitally signed by
David R. Herndon
Date: 2015.03.13
15:43:13 -05'00'

or other change in address occurs.
IT IS SO ORDERED.
DATED: March 13, 2015

United States District Judge

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