Van Green v. Cross

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 4/15/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONNY VAN GREEN,
# 09489-045,
Petitioner,
vs.
JAMES CROSS, Jr.,
Respondent.

Case No. 15-cv-295-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner

Ronny

Van

Green

(“Green”),

an

inmate

in

the

Federal Correctional Institution located in Greenville, Illinois, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241.

Green challenges his enhanced

sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (Doc. 1, p. 7).
He contends that one of the predicate offenses giving rise to his status as an
armed career criminal, i.e., a 1978 conviction in Missouri for stealing from a
person, is not a “violent felony” under 18 U.S.C. § 924(e)(2)(B) and therefore does
not qualify as a predicate offense.

Green asks the Court to resentence him

without the armed career criminal enhancement, in light of the United States
Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), and
its progeny.
This matter is now before the Court for preliminary review of the habeas
petition.

Rule 4 of the Federal Rules Governing Section 2254 Cases in
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United States District Courts provides that upon preliminary consideration by the
district judge, “[i]f it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court, the
judge shall make an order for its summary dismissal and cause the petitioner to
be notified.” Rule 1(b) of those Rules gives this Court the authority to apply the
rules to other habeas corpus cases.

Upon review of the instant petition, the

Court concludes that it would be premature to dismiss the petition under Rule 4
at this time. Therefore, a response shall be ordered.
I.

Background

On June 24, 1997, Green was charged with the following crimes:
(1) Count One – armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d);
(2) Count Two – use of a firearm during a crime of violence in violation of
18 U.S.C. § 924(c); and (3) Count Three – being an armed career criminal in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
United States v. Green, Case No. 97-cr-00087-DGK-1 (W.D. Mo. 1997)
(“criminal case”) (Doc. 29). 1

Prior to trial, the Government filed a Notice of

Information Pursuant to 18 U.S.C. § 3559, which would require a sentence of life
imprisonment for Green upon conviction of the armed bank robbery count
(Doc. 41, criminal case). Green was found guilty of Counts One, Two, and Three,

1

In order to determine Green’s criminal and litigation history, the Court reviewed the Public
Access to Court Electronic Records (“PACER”) website (www.pacer.gov). See Bova v. U.S. Bank,
N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice public records
available on government websites) (collecting cases). Court documents are, of course, public
records of which the Court can take judicial notice. See Henson v. CSC Credit Servs., 29 F.3d
280, 284 (7th Cir. 1994).

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following a jury trial on September 17, 1997 (Doc. 81, criminal case).
On December 9, 1997, Green was sentenced to concurrent terms of life
imprisonment on Counts One and Three, to be followed by a consecutive term of
sixty months’ imprisonment on Count Two (Docs. 87, 88, criminal case).
The United States Court of Appeals for the Eighth Circuit affirmed the
convictions and sentences on direct appeal. United States v. Green, 157 F.3d
617, 618-20 (8th Cir. 1998). Between 1998 and 2014, Green filed approximately
twenty separate post-sentencing motions and petitions in an effort to attack his
convictions and sentences in the United States District Court for the Western
District of Missouri, 2 the United States Court of Appeals for the Eighth Circuit, 3
and the United States Supreme Court.

Each was unsuccessful.

The instant

petition followed.
II.

Habeas Petition

2

See, e.g., Green v. United States, Case No. 00-cv-00552-NKL (W.D. Mo. 2000) (Docs. 20, 21)
(denying motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on Mar. 29,
2001); Id. at Doc. 26 (denying motion for reconsideration on May 31, 2001); Id. at Doc. 28
(denying certificate of appealability on June 22, 2001); Id. at Doc. 31 (denying motion for leave to
proceed in forma pauperis on appeal); Id. at Doc. 40 (denying motion for relief from judgment on
June 8, 2004); Id. at 46 (denying motion for relief from judgment on June 20, 2006); Id. at 50
(denying motion for certificate of appealability on Sept. 26, 2006); Id. at 61 (denying motion for
relief from judgment on June 20, 2011); Id. at Doc. 81 (denying motion for relief from judgment
on Oct. 15, 2014).
3
See also Green v. United States, Appeal No. 98-1052 (8th Cir. 1998) (denying motion to recall
mandate on July 20, 2001, and July 25, 2008), cert. denied Green v. United States, No. 09-5562
(Oct. 5, 2009); Green v. United States, Appeal No. 01-2626 (8th Cir. 2001) (denying certificate of
appealability and dismissing appeal on Sept. 18, 2001, and denying petition for rehearing on Oct.
25, 2001), cert. denied Green v. United States, No. 02-6325 (Oct. 21, 2002); Green v. United
States, Appeal No. 04-2568 (8th Cir. 2004) (summarily affirming judgment of the district court on
Sept. 24, 2004, and denying petition for rehearing on Dec. 1, 2004); Green v. United States,
Appeal No. 06-3484 (8th Cir. 2006) (denying application for certificate of appealability on Nov. 9,
2006, and petition for rehearing on Jan. 19, 2007), cert. denied Green v. United States, No. 0610653 (May 14, 2007); Green v. United States, Appeal No. 11-3857 (8th Cir. 2011) (denying
application for certificate of appealability on Mar. 27, 2012, and petition for rehearing June 13,
2012).

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In the operative Section 2241 petition, Green contends that his 1978
conviction in Missouri for stealing from a person (“Missouri stealing conviction”)
is not a “violent felony” and therefore cannot support an enhanced sentence under
the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”) (Doc. 1, p. 7; Doc. 11, p. 2).

The ACCA imposes a 15-year mandatory minimum sentence on an

offender who has three prior convictions “for a violent felony or a serious drug
offense.”

Id.

A “violent felony” is defined under the ACCA as “any crime

punishable by imprisonment for a term exceeding one year” that “(i) has as an
element the use, attempted use, or threatened use of physical force against the
person of another; or (ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
When Green pleaded guilty to the offense in 1978, he denied the use or
threatened use of a firearm (Doc. 1, p. 7). He also denied the use, attempted use,
or threatened use of physical force against a person, or any aggressive conduct
that presented a serious potential risk of physical injury to another (Id.).
Green claims that the Missouri Circuit Court considered the offense to be a
misdemeanor and sentenced him to a maximum term of one year of
imprisonment.
When the United States District Court for the Western District of Missouri
applied the ACCA enhancement to sentence Green to a life term of imprisonment
as an armed career criminal, the sentencing court allegedly relied on the charges

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in the State’s indictment. The charges included first degree robbery and armed
criminal action (Doc. 1-1, p. 12; Doc. 1-2, p. 2). The district court overlooked the
fact that the first degree robbery charge was amended to “stealing from the
person,” and the handgun charge was dismissed. In addition, the district court
overlooked the fact that Green was only sentenced to one year of imprisonment
because the Missouri stealing conviction was treated as a misdemeanor under
MO. REV. STAT. §§ 558.011(5) and 570.030(7). Finally, Green argues that he did
not receive any criminal history points for his misdemeanor conviction (Id.).
Under

the

Missouri stealing

circumstances
conviction

presented,

does

not

Green

satisfy

the

maintains

that

requirements

for

the
a

“violent felony” under 18 U.S.C. § 924(e)(2)(B) and its subparts (Doc. 1 p. 7;
Doc. 1-1, p. 3).

He further contends that the United States Supreme Court’s

decisions in Begay v. United States, 553 U.S. 137 (2008), and Chambers v.
United States, 555 U.S. 122 (2009), support his position and provide the proper
framework for determining whether his Missouri stealing conviction is a
“violent felony” under the ACCA. See also United States v. Higgins, 710 F.3d
839 (8th Cir. 2013); Unites States v. Hennecke, 590 F.3d 619 (8th Cir. 2010)
(Doc. 1-1, p. 4); Brown v. Rios, 696 F.3d 638 (7th Cir. 2012); Narvaez v. United
States, 674 F.3d 621 (7th Cir. 2011); Welch v. United States, 604 F.3d 408
(7th Cir. 2010).
In short, Green maintains that the Missouri stealing conviction did not
qualify as a predicate offense and therefore cannot be used to enhance Green’s

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sentence under the ACCA (Doc. 1, p. 7).

Doing so allegedly resulted in the

imposition of a sentence that exceeds the statutory maximum, as applied to Green
(Id.). He argues that it amounts to a fundamental defect in his sentence and a
miscarriage of justice. Green asks the Court to resentence him without the armed
career criminal enhancement.
III.

Discussion

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). Instead, a federally convicted person
may challenge his conviction and sentence by bringing a motion pursuant to
28 U.S.C. § 2255 in the court that sentenced him.

A Section 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 Section 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).

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Green has repeatedly sought

permission to file a second or successive Section 2255 motion without success.
Under very limited circumstances, a prisoner may challenge his federal
conviction or sentence under Section 2241.

See 28 U.S.C. § 2255(e).

Section 2255(e) contains a “savings clause” that authorizes a federal prisoner to
file a Section 2241 petition where the remedy under Section 2255 is “inadequate
or ineffective to test the legality of his detention.”

Id.; see also United States

v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).

“A procedure for post-

conviction 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 Section 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 F.3d 638, 640 (7th Cir. 2012).
Green’s petition generally satisfies the Davenport requirements. Begay is a
statutory interpretation case, and the Seventh Circuit has held that the first

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Davenport requirement is satisfied in challenges based on Begay’s interpretation
of “violent felony” under the ACCA. See, Light v. Caraway, 761 F.3d 809, 813
(7th Cir. 2014); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). The Begay
decision applies retroactively and could not have been invoked at the time that
Green filed his first Section 2255 petition.

Brown v. Rios, 696 F.3d at 640.

Finally, an erroneous sentence enhancement based on the misapplication of the
ACCA states a cognizable claim in this context.
Without commenting on the merits of Green’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.
IV.

Disposition

IT IS HEREBY ORDERED that Respondent Warden James Cross, Jr. shall
answer the petition or otherwise plead within thirty (30) days of the date this
order is entered (on or before May 15, 2015). 4 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.

4

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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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
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).
IT IS SO ORDERED.
Signed this 15th day of April, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.04.15
16:14:07 -05'00'

United States District Judge

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