Chaney v. Cross

Filing 40

ORDER DISMISSING CASE with prejudice and denying habeas corpus petition. Further, the Court DIRECTS the Clerk of the Court to enter judgment. See Order for details. Signed by Judge David R. Herndon on 11/15/2017. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARLTON L. CHANEY
Civil No. 15-cv-00211-DRH-CJP

Petitioner,
vs.
JAMES CROSS, JR.,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
This matter is now before the Court on Carlton L. Chaney’s petition for writ
of habeas corpus under 28 U.S.C. § 2241. (Doc. 1).
In 1997, separate juries convicted Mr. Chaney (Petitioner) of armed
robbery, carjacking, two counts of using a firearm while committing a crime of
violence, and possessing a firearm as a felon. Chaney v. United States, 101 F.
App'x 160, 162 (7th Cir. 2004).

He received a sentence of 430 months:

“concurrent terms of 130 months for armed bank robbery, 130 months for
carjacking, and 120 months for possession of a firearm by a felon, plus
consecutive terms of 60 months and 240 months for using a firearm during the
bank robbery and carjacking.” Id.
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Petitioner attacks his conviction for use of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c), as it relates to the armed robbery. He
argues he is entitled to habeas relief pursuant to Rosemond v. United States, 134
S. Ct. 1240 (2014).
Relevant Facts and Procedural History
In its preliminary review of the petition, this Court summarized the facts of
Petitioner’s case as follows:
On April 18, 1997, at approximately 9:20 A.M., three masked
African–American males robbed the NBD Bank in Indianapolis,
Indiana. One robber stood in the lobby area, waived a gun, and told
everyone in the bank to keep their hands up. 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. The
robbers then ran out of the bank, jumped into a dark blue Cadillac
that had been stolen earlier that day, and sped away.
Two civilians witnessed the bank robbery and earnestly gave chase.
The first, James Nulf, was the husband of one of the bank
employees. 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. The
second witness, Donna Dauby, was driving by the bank when she saw
the robbers leave the bank and speed off. Like Nulf, she also
followed the robbers to Inland Drive. As she drove towards the
Cadillac, a Chevrolet Suburban drove toward her, veered around the
Cadillac, and sideswiped the driver's side of Dauby's vehicle. The
Suburban then careened off of Dauby's vehicle and crashed into a
nearby house.
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”). Six fingerprints, later identified as Chaney's, were on the
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inside of the Suburban. 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.
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. The Howe's residence was
located one street away from the abandoned Suburban. The robber
took the Howe's car and drove off. While Mr. Howe could not identify
the assailant, Mrs. Howe ultimately identified Chaney as the man who
entered the Howes' home.
Police arrested Chaney on May 2, 1997, as he left an apartment that
he had leased in the name of Michael Troy Smith. During the arrest,
Chaney fled from the police in his car, pointed his gun at officers
when he was stopped, and then fled again. He was ultimately
captured when he lost control of his vehicle. When arrested, Chaney
was carrying an Indiana driver's license in the name of Troy Smith
(with his picture on it), and police found a handgun on the floor of
his vehicle. 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.
Chaney v. Cross, 2015 WL 1228918, at *1–2 (S.D. Ill. Mar. 16, 2015) (internal
citations omitted) (Doc. 3).
At trial, Petitioner’s jury received an aiding and abetting instruction, which
provided a person is guilty of a crime if he “knowingly aids, abets, counsels,
commands, induces or procures the commission of a crime.” (Doc. 1, p. 28).
The instruction further explained, “However, that person must knowingly
associate himself with the criminal venture, participate in it, and try to make it
succeed.” Id. The jury returned a general verdict form, convicting Petitioner of all
counts. Chaney, at *2.

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Petitioner appealed his conviction and the Seventh Circuit rejected the
challenge, citing the “overwhelming” evidence against Petitioner:
Chaney's identification and fingerprints were found in a car
containing the pillowcase full of cash from the bank robbery and a
mask identified by a teller as the one worn by the leader of the
robbers. The car contained repair records under Chaney's “Troy
Smith” alias, suggesting that it was Chaney's car. Mrs. Howe
identified Chaney as the man who took the Howes' car at gunpoint.
When the police later attempted to arrest Chaney, he fled from them
and threatened them with a gun. Witnesses testified that Chaney's
gun was similar to the one used in the bank robbery and the
carjacking.
United States. v. Chaney, 165 F.3d 33, at *4 (7th Cir. Oct. 23, 1998). Petitioner
then unsuccessfully sought relief via two § 2255 motions and several § 2241
petitions. See, e.g., Chaney v. Cross, 2014 WL 1041036, at *1 (S.D.Ill. Mar. 18,
2014); Chaney v. United States, 2008 WL 818565, at *1 (S.D.Ill. Mar. 21, 2008);
Chaney v. O'Brien, 2007 WL 1189641, at *1 (W.D.Va. Apr. 23, 2007); Chaney v.
O'Brien, 2006 WL 4595798, at *1 (W.D.Va. Mar. 7, 2006).
Applicable Law
1.

Law Applicable to § 2241 Petition
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).
A federally convicted person may challenge his conviction and sentence by
bringing a motion pursuant to 28 U.S.C. § 2255 in the court which sentenced
him. Indeed, a § 2255 motion is ordinarily the “exclusive means for a federal
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prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir.
2003). The statute generally limits a prisoner to one challenge of his conviction
and sentence 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).
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.” 28 U.S.C. § 2255(e). See, United States v. Prevatte, 300 F.3d
792, 798–99 (7th Cir.2002). “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.” In re Davenport, 147 F.3d
605, 611 (7th Cir. 1998)
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

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constitutional case.

Secondly, he must show that the decision could not have

been invoked in the first § 2255 motion and applies 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).
2.

Rosemond v. United States
Justus Rosemond was convicted of violating § 924(c) for aiding and

abetting the use of a firearm during the commission of a drug trafficking crime.
Rosemond v. United States, 134 S. Ct. 1240, 1241 (2014).

The trial court

refused Rosemond’s proposed jury instruction, which required the jury to find
Rosemond “acted intentionally to facilitate or encourage the firearm’s use,” rather
than just the predicate drug offense. Id. On direct appeal, Rosemond argued the
court’s aiding and abetting instructions were erroneous. Id. The Tenth Circuit
rejected his argument, and the Supreme Court granted certiorari “to resolve the
Circuit conflict over what it takes to aid and abet a § 924(c) offense.” Id. at 1245.
18 U.S.C. § 2(a) provides that a person who “aids, abets, counsels,
commands, induces or procures” the commission of a federal offense is
“punishable as a principal.” In Rosemond, the Supreme Court noted the longstanding rule that “a person is liable under § 2 for aiding and abetting a crime if
(and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with
the intent of facilitating the offense’s commission.”

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Rosemond, 134 S. Ct. at

1245.

The question before the Court was “how those two requirements –

affirmative act and intent – apply in a prosecution for aiding and abetting a §
924(c) offense.” Id.
In general, a person can be convicted of aiding and abetting an offense
without proof that he took part in every element of the offense. Id. at 1246.
Thus, a person can aid and abet a violation of § 924(c) by acting to bring about
either the drug trafficking offense (as in Rosemond), or the use of a firearm; it is
not necessary that he physically participate in both. Id. at 1247. “In helping to
bring about one part of the offense (whether trafficking drugs or using a gun), he
necessarily helped to complete the whole. And that ends the analysis as to his
conduct.” Id.
The government must show more, however, than physical participation in
one or more elements of the violation of § 924(c). The Supreme Court described §
924(c) as establishing a “combination crime,” meaning that it “punishes the
temporal and relational conjunction of two separate acts, on the ground that
together they pose an extreme risk of harm.”

Id.

at 1248.

Accordingly, “an

aiding and abetting conviction requires not just an act facilitating one or another
element, but also a state of mind extending to the entire crime.” Id. In other
words, the evidence must establish the defendant intended to bring about the
“illegal scheme in its entirety – including its use of a firearm.” Id. at 1249.
The Supreme Court noted it had previously found the intent requirement
for aiding and abetting “satisfied when a person actively participates in a criminal

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venture with full knowledge of the circumstances constituting the charged
offense.” Id. at 1248-49. The Court explained, “The same principle holds here:
An active participant in a drug transaction has the intent needed to aid and abet a
§ 924(c) violation when he knows that one of his confederates will carry a gun.”
Id. at 1249. The Court then stated,
For all that to be true, though, the § 924(c) defendant's knowledge of
a firearm must be advance knowledge—or otherwise said, knowledge
that enables him to make the relevant legal (and indeed, moral)
choice. When an accomplice knows beforehand of a confederate's
design to carry a gun, he can attempt to alter that plan or, if
unsuccessful, withdraw from the
enterprise; it is deciding
instead to go ahead with his role in the venture
that shows his
intent to aid an armed offense. But when an accomplice knows
nothing of a gun until it appears at the scene, he may already have
completed his acts of assistance; or even if not, he may at that late
point have no realistic opportunity to quit the crime. And when that
is so, the
defendant has not shown the requisite intent to assist a
crime involving a gun. . . . For the reasons just given, we think that
means knowledge at a
time the accomplice can do something with
it—most notably, opt to walk away.
Id. at 1249-50.
The Supreme Court went on to hold that the district court’s jury instruction
was erroneous because it did not require the jury to find Rosemond had “advance
knowledge” that a firearm would be present. Id. at 1251.
Analysis
Petitioner contends the Government provided insufficient evidence to prove
he actually used a gun during the robbery. According to Petitioner, he is therefore
entitled to habeas relief because the aiding and abetting jury instruction was
deficient in light of Rosemond, as it did not require a finding Petitioner had

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“advance knowledge” his confederates would use a firearm. He also argues his
theory of defense at trial would have been significantly different based on
Rosemond.

The initial inquiry, however, is whether Petitioner may properly

assert these arguments under § 2255’s savings clause.
A federal prisoner challenging the legality of his sentence must generally
bring his claims in a motion under § 2255. Brown v. Caraway, 719 F.3d 583,
586 (7th Cir. 2013). As mentioned above, Petitioner has filed previous § 2255
motions and he does not meet the requirements to bring a successive petition
under § 2255(h).

However, § 2255 contains a “savings clause” that permits

Petitioner to bring a claim under § 2241 if § 2255 is “inadequate or ineffective to
test the legality of his detention.” 28 U.S.C. § 2255(e).
To determine whether the savings clause applies, the Seventh Circuit
employs the aforementioned three-part test established in Davenport, which
requires (1) the petitioner relies on a statutory-interpretation case; (2) the new
rule applies retroactively on collateral review and could not have been invoked in
the petitioner’s previous proceedings; and (3) the error amounts to a miscarriage
of justice.

Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016); In re

Davenport, 147 F.3d 605, 610–11 (7th Cir. 1998).
Respondent agrees, and the Seventh Circuit has already determined, that
Rosemond is a case of statutory construction and is retroactive.
Cross, 829 F.3d 775, 783 (7th Cir. 2016).

Davenport’s second condition,

however, also requires “prior unavailability of the challenge.”

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Montana v.

Id. Respondent

argues Petitioner cannot establish unavailability because Petitioner could have
asserted the rule in Rosemond in his first § 2255 motion.
Respondent relies on the Seventh Circuit case Montana v. Cross, 829 F.3d
775 (7th Cir. 2016), whose facts are very similar to the case at bar.

There,

Darwin Montana was convicted of using a firearm while committing a crime of
violence in violation of § 924(c) for aiding and abetting a bank robbery in which
his accomplice used a firearm.

Montana, 829 F.3d at 776.

Montana

subsequently “filed several unsuccessful postconviction petitions, including a
motion to vacate under 28 U.S.C. § 2255.” Id.
Following the Supreme Court’s decision in Rosemond, Montana filed a
petition under § 2241.

Id.

He argued the trial court’s jury instructions

erroneously permitted a conviction without requiring a finding he had actual,
advance knowledge his accomplice would use a firearm. Id. at 778. The district
court dismissed his petition, finding Montana could not meet the requirements of
the savings clause. Id. at 778-79. Montana appealed. Id. at 779.
On review, the vitality of Montana’s claim turned on whether Rosemond
satisfied the unavailability requirement of the second prong of the Davenport test.
The Seventh Circuit explained, “[T]he second prong is satisfied if it would have
been futile to raise a claim in the petitioner’s original section 2255 motion, as the
law was squarely against him.” Id. at 784 (quoting Webster v. Daniels, 784 F.3d
1123, 1136 (7th Cir. 2015) (internal quotations omitted).
The court looked to United States v. Woods, 148 F.3d 843 (7th Cir. 1998)

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and United States v. Taylor, 226 F.3d 593 (7th Cir. 2000) to determine whether
the circuit’s law was “squarely against” Montana’s position. Id. at 784-85. The
Seventh Circuit noted that neither case established constructive knowledge was
adequate to sustain a conviction and, thus, “it certainly was not foreclosed to Mr.
Montana to argue that the Government had to prove that he had actual knowledge
of the presence of the firearm . . . .” Id. at 785. In other words, the rule in
Rosemond was not previously unavailable for purposes of the Davenport test.
The Seventh Circuit affirmed the district court’s dismissal. Id.
Here, Petitioner does not distinguish Montana from the facts of his case.
Instead, he argues the Seventh Circuit’s analysis in Montana was wrong.
Petitioner’s argument is futile.
This Court must abide by the doctrine of stare decisis, which provides that
“decisions of a superior court in a unitary system bind the inferior courts.” Colby
v. J.C. Penney Co., Inc., 811 F.2d 1119, 1123 (7th Cir. 1987). A district court
may depart from precedent only if it is “powerfully convinced” the circuit court in
which it sits would “overrule [the precedent] at the first opportunity.” Id. This is
generally established using subsequent case law. See Olson v. Paine, 806 F.2d
731, 734 (7th Cir. 1986) (a district court cannot stray from precedent unless a
subsequent decision makes it “almost certain” the higher court would reverse its
previous position “if given a chance to do so.”).
Petitioner does not set forth a sufficient foundation for declining to follow
Montana. He baselessly asserts Montana defeats all § 2241 motions premised on

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a change in the law and contends pre-Rosemond case law did, in fact, foreclose
any argument that the Government had to prove actual, advance knowledge of a
firearm. Petitioner’s objections to Montana, however, are misplaced. He does not
assert the Seventh Circuit would overrule Montana, let alone point to any case law
suggesting the same.

Merely disagreeing with the Seventh Circuit is not an

adequate basis to depart from precedent.
Montana, therefore, is binding on this Court and its rule must be applied
here; Seventh Circuit case law prior to Rosemond did not prevent Petitioner from
asserting the Government was required to prove actual, advance knowledge of the
firearm in his initial § 2255 motion.
Petitioner argues in the alternative that he raised and preserved his claim
surrounding the aiding and abetting jury instruction in his first § 2255 motion.
The Court need not substantively address Petitioner’s theory because, if
successful, it would defeat his claim. If Petitioner raised the Rosemond argument
in his initial § 2255, then he was obviously not foreclosed from invoking it, and it
was not unavailable as required under Davenport. Petitioner has therefore failed
to demonstrate § 2255 would provide an inadequate or ineffective remedy.
Nonetheless, even if Petitioner could proceed under the savings clause, he
would not be entitled to habeas relief.

The Government set forth sufficient

evidence that Petitioner was involved in the robbery.

The Seventh Circuit

described the evidence against Petitioner as “so overwhelming.” United States v.
Chaney, 165 F.3d 33, at *4 (7th Cir. Oct. 23, 1998).

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Additionally, the

Government proved, at a minimum, that Petitioner had advance knowledge his
cohorts would use a firearm in the robbery.
The robbery Petitioner was involved with included a plan to takeover the
bank – i.e. it was not a mere demand-note robbery. Davis v. Cross, 863 F.3d
962, 965 (7th Cir. 2017). One robber stood in the lobby area, waiving a gun,
while the other two robbers rushed behind the teller area. The Seventh Circuit
has explained:
[A] takeover robbery would be expected to involve arms. As we
observed in [United States v. Lawson, 810 F.3d 1032, 1041 (7th
Cir. 2016)], which involved the armed robbery of a post office and a
partner drawing a gun upon entry, “[i]t is implausible that such a
mid-day robbery plan would not have included a firearm designed to
influence and threaten the employees or patrons that are sure to be
there.”
Id. at 965-66.

Here, the robbers’ “coordinated action” quells any reasonable

doubt Petitioner had advanced knowledge of the gun. Id. at 965. If Petitioner
was, indeed, not carrying a weapon, it is unlikely his decision to rush the teller
area “was simply an on-the-fly adjustment once he ‘discovered’ [his cohort] was
armed.” Id.
Because Petitioner cannot properly assert his Rosemond arguments under
§ 2255’s savings clause, and because a properly instructed jury would not have
doubted Petitioner knew beforehand a firearm would be used in robbing the
bank, his writ of habeas corpus is denied.
Conclusion
Carlton L. Chaney’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. §

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2241 (Doc. 1) is DENIED. The Court DISMISSES with prejudice this cause of
action. Further, Petitioner’s Motion to Appoint Counsel (Doc. 38) is DENIED AS
MOOT. The Clerk of Court shall enter judgment in favor of respondent.

Judge Herndon
2017.11.15 15:05:39
-06'00'

IT IS SO ORDERED.

United States District Judge

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Notice
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within 60 days of the entry of judgment. Fed. R. App. P.
4(a)(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, if he intends to file a motion pursuant to
Federal Rule of Civil Procedure 59(e), that motion 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).

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