Van Green v. Cross
Filing
17
ORDER DISMISSING CASE: The Court GRANTS 14 MOTION to Dismiss Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. Section 2241 filed by James Cross, Jr., and DISMISSES with prejudice petitioner's 2241 habeas petition. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 8/13/15. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONNY VAN GREEN,
Petitioner,
Civil No. 15-cv-295-DRH-CJP
vs.
JAMES CROSS, JR.,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
Ronny Van Green filed a petition for writ of habeas corpus under 28 U.S.C.
§2241. (Doc. 1). This matter is now before the Court on respondent’s Motion to
Dismiss. (Doc. 14).
In 1997, a jury in the Western District of Missouri convicted petitioner of
armed bank robbery, use of a firearm during a crime of violence, and being an
armed career criminal in possession of a firearm.
He was sentenced to life
imprisonment on Count One under 18 U.S.C. §3559(c)(1)(“three strikes” law),
and to life imprisonment on Count Three under 18 U.S.C. §924(e)(Armed Career
Criminal Act, or ACCA). He was also sentenced to a consecutive term of sixty
months on Count Two.
The petition is directed to the life sentence under the ACCA. Green argues
that he should not have been sentenced under §924(e) because one of his
predicate offenses did not qualify as either a felony or a violent crime.
Respondent argues that Green is precluded from making this argument in a
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§2241 petition.
Relevant Facts and Procedural History
The presentence investigation report stated that Green was convicted in
1978 of stealing from a person in Jackson County, Missouri. A second count of
armed criminal action was dismissed.
imprisonment.
Green was sentenced to one year of
The report stated, “The defendant was originally charged with
robbery first degree.
According to the Information, the defendant robbed the
victim with the use of a handgun. The defendant took the victim’s wristwatch,
money, and other property by force and violence.” Doc. 14, Ex. 2, p. 4, &40.
Petitioners’ direct appeal raised only an issue as to the life sentence on the
bank robbery count under the “three strikes” law. United States v. Green, 157
F.3d 617 (8th Cir. 1998).
In June, 2000, petitioner filed a motion to vacate, set aside or correct his
sentence under 28 U.S.C. §2255 in the Western District of Missouri, raising a
number of claims.
Among other points, he argued that counsel had been
ineffective for failing to argue that his 1978 conviction for stealing from a person
was not a violent crime. In her order denying the motion, District Judge Nanette
K. Laughrey noted that counsel had, in fact, argued at trial that the stealing
conviction was a misdemeanor and not a felony, and further noted that Green did
not dispute that point or dispute the fact that his stealing conviction was a Class C
felony. Judge Laughrey held that counsel had not been ineffective because the
argument that stealing from a person was not a violent crime had no merit.
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Judge Laughrey noted that she had adopted the information in the pretrial
investigation report as her findings, and found that the crime of stealing from a
person under Missouri law has as an element the threatened use of physical force.
“Looking at the elements of stealing under Missouri law, it clearly has as a
possible element the threatened use of physical force, making it a violent felony
for purposes of the ACCA.”
Green v. United States, Case No. 00-cv-552-NKL,
Doc. 20, pp. 8-10 (W.D. Mo., March 30, 2001).
The Eighth Circuit Court of
Appeals denied a certificate of appealability on September 18, 2001. Case No. 00cv-552-NKL, Doc. 32.
In April, 2004, Green filed a motion for relief from judgment in his §2255
case, which was denied. Case No. 00-cv-552-NKL, Docs. 33 & 40. The Eighth
Circuit summarily affirmed. Case No. 00-cv-552-NKL, Doc. 43.
Green filed a number of additional motions for relief from judgment in the
Western District of Missouri. In an order dated June 20, 2011, Judge Laughrey
noted that Green’s motions had been denied by the District Court, the Court of
Appeals and Supreme Court a total of 17 prior times. Case No. 00-cv-552-NKL,
Doc. 61. The Eighth Circuit denied a certificate of appealability in March, 2012.
Case No. 00-cv-552-NKL, Doc. 73.
Green filed yet another motion for relief from judgment in June, 2014.
Case No. 00-cv-552-NKL, Doc. 75. Among other points, he argued that his 1978
conviction for stealing from a person was a misdemeanor and therefore could not
be used as a predicate crime for purposes of the ACCA. The motion was denied
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in October, 2014. Case No. 00-cv-552-NKL, Doc. 83.
Applicable Legal Standards
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 prisoner
to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003).
However, 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
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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
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
Respondent’s motion to dismiss is well-taken. This Court cannot entertain
Green’s petition because it does not fit within the savings clause of 28 U.S.C.
§2255(e).
In order to show that §2255 is inadequate, 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
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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.
Where the claim being advanced in the §2241
petition could have been, or was, advanced in a prior §2255 motion, the remedy
offered by §2255 is not inadequate or ineffective. Taylor v. Gilkey, 314 F.3d 832,
835-836 (7th Cir. 2002); Davenport, 147 F.3d at 609.
The claims that petitioner raises in his §2241 petition are not new. They
were available to him at the time he filed his §2255 motion, and they were actually
raised in one form or another in his initial §2255 motion. Green argued in his
§2255 motion that counsel was ineffective for failing to argue that his 1978
stealing conviction did not qualify as a violent crime under the ACCA. He could
also have raised the claim that that his stealing conviction was a misdemeanor.
The fact that his claims were unsuccessful does not mean that the remedy
afforded by §2255 was inadequate to test the legality of his detention. Taylor v.
Gilkey, 314 F.3d 832, 835 (7th Cir. 2002). Therefore, he cannot invoke §2241.
In his memorandum in support of his petition, Green also argues that his
stealing conviction could not be used to enhance his sentence under U.S.S.G.
§4B1.1 because he was not assessed any criminal history points based on that
conviction. See, Doc. 1, Ex. 1, p. 4. That argument is irrelevant because his
sentence was not enhanced under §4B1.1; he was sentenced as an armed career
criminal under 18 U.S.C. §924(e). In any event, that argument, like his other
arguments, is not new and could have been raised in his §2255 motion.
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Green tries to demonstrate reliance on a change in the law by citing Begay
v. United States, 128 S. Ct. 1581 (2008). Begay concerned the application of the
residual clause of the ACCA. Begay was implicitly overruled by Johnson v. United
States, ––– U.S. ––––, 135 S.Ct. 2551 (2015), in which the Supreme Court held
that that the residual clause is unconstitutionally vague.
Neither Begay nor Johnson has any application to Green’s case because he
was not sentenced under the residual clause of the ACCA.
Rather, Judge
Laughrey determined that his conviction for stealing from a person is a violent
felony for purposes of the ACCA under the elements clause, not the residual
clause.
Green’s argument here boils down to an attack on the correctness of
Judge Laughrey’s conclusion. He does not rely on any new rule of law. He cites
Descamps v. United States, 133 S.Ct. 2276 (2013) in his response, but that case
does not announce a new rule.
Rather, Descamps reaffirmed the “categorical
approach” and “modified categorical approach” analysis established in Taylor v.
United States, 110 S. Ct. 2143 (1990).
Descamps, 133 S. Ct. at 2283-2284.
Judge Laughrey cited Taylor in her order denying Green’s §2255 motion. See,
Green v. United States, Case No. 00-cv-552-NKL, Doc. 20, p. 9 (W.D. Mo., March
30, 2001).
In short, petitioner’s arguments do not rely on a new rule of statutory
construction, or on a new rule of any kind.
They are all arguments that he
raised or could have raised in his §2255 motion.
His disagreement with the
resolution of that motion does not mean that the remedy offered by §2255 is
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inadequate or ineffective. “Paragraph 5 [i.e., §2255(e)] poses the question whether
the remedy is adequate ‘to test the legality’ of the detention. This implies a focus
on procedures rather than outcomes.” Taylor v. Gilkey, 314 F.3d 832, 835 (7th
Cir. 2002).
Lastly, even if petitioner were to prevail on his habeas petition, the length of
his incarceration would not be changed. He is serving a life sentence on the bank
robbery charge, imposed under 18 U.S.C. §3559(c)(1), the “three strikes” law. He
did not raise any issue as to that sentence in his petition. In his response to the
motion to dismiss, he suggests that he was erroneously sentenced under
§3559(c)(1) because one of his prior robbery convictions should not have been
used as a “strike.”
However, Green raised that very issue on direct appeal.
Green, 157 F.3d at 619.
The argument he advances here has already been
rejected by the Eighth Circuit and does not rely upon any new rule. Therefore, for
the reasons set forth above, he cannot challenge the life sentence imposed on the
bank robbery charge in a §2241 petition.
Conclusion
Respondent’s Motion to Dismiss (Doc. 14) is GRANTED. Ronny Van
Green’s Petition for a Writ of Habeas Corpus Under 28 U.S.C.
DISMISSED WITH PREJUDICE.
§2241 is
The Clerk of Court shall enter judgment
accordingly.
IT IS SO ORDERED.
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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 sixty 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 a motion 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).
IT IS SO ORDERED.
Signed this 13th day of August, 2015
Digitally signed by
David R. Herndon
Date: 2015.08.13
09:56:25 -05'00'
United States District Court Judge
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