Conroy v. USA

Filing 13

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 7/17/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN ALAN CONROY,
No. 42054-177,
Petitioner,
vs.

CIVIL NO. 15-00528-DRH

WARDEN WALTON,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Judge:
Petitioner John Alan Conroy, an inmate currently housed at the United
States Penitentiary in Marion, Illinois, is petitioning for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. He wants to overturn his criminal conviction and
sentence in United States v. Conroy, Case No. 10-cr-00041-C-BG-1 (N.D. Tex.
2011).
Conroy’s amended petition (Doc. 10) is now before the Court for
preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in United States District Courts.

Rule 4 provides that upon preliminary

consideration by the district court judge, “[i]f it plainly 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 under 28 U.S.C. § 2241.
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Procedural History
Petitioner Conroy pleaded guilty to production of child pornography (18
U.S.C. § 2251(a)) and receiving a visual depiction of a minor engaging in sexually
explicit conduct (18 U.S.C. § 2252(a)(2)). United States v. Conroy, No. 10-cr041-C-BG-, Doc. 271 (N.D. Tex.). In March 2011, he was sentenced to a total
term of 405 months’ imprisonment. Id. at Doc. 36. Consistent with the plea
agreement, no direct appeal was taken.
For purposes of the plea agreement and sentencing, 1 Conroy admitted that
that while he was unemployed and often left to care for his live-in girlfriend’s
children, he engaged in numerous sexual acts with the victim, who at the time was
7 years old. Relevant to the present habeas corpus action, Conroy and the victim
performed oral sex on each other (with Conroy “in control” of the victim’s head,
and with the victim chocking on Conroy’s penis); Conroy placed a razor in the
victim’s anus, causing lacerations, which the victim said “hurt really bad,”
because Conroy had trouble penetrating her anus with his penis. These acts were
videotaped, and the recordings were found during a consent search, as was a
razor matching the description given by the victim. Conroy was interrogated by
law enforcement agents, and he admitted to having sexual contact with the victim
on 12 occasions during an approximately nine-month period. Other details are
not relevant to this action and, therefore, have been omitted.
1

The Texas district court relied upon the synopsis of facts contained in the
government’s response to Conroy’s Section 2255 motion, which relied upon the
factual resume in the presentence report upon which Conroy’s sentence was
based. See Conroy, No. 12-cv-015-01-C, Doc. 14, p. 1 n. 1; Doc. 7, pp. 7-9.
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In February 2012, pursuant to 28 U.S.C. § 2255, Conroy moved to vacate,
set aside, or correct his sentence. Conroy v. United States, No. 12-cv-015-C, Doc.
1 (N.D. Tex.). He contended his trial counsel was ineffective by:
(1)

failing to relay discovery materials to Conroy until 255 days
after sentencing, leaving Conroy uninformed during the plea
and sentencing process—unable to challenge false aspects of
the presentence report;

(2)

failing to research and move for the suppression of evidence
stemming from promises, threats and coercion by the state
police during Conroy’s initial interrogation, search and seizure;

(3)

not moving to dismiss based on a Speedy Trial Act violation;
and

(4)

failing to secure a mental competency evaluation in light of
Conroy’s history of PTSD, depression, anxiety, and impulse
control disorder.

By order dated September 24, 2013, the district court denied Conroy’s
Section 2255 motion. Conroy, No. 12-cv-015-C, Doc. 14.

In March 2014, the

Court of Appeals for the Fifth Circuit subsequently declined to issue a certificate
of appealability because Conroy had failed to make a substantial showing of a
constitutional right. Id. at Doc. 20.
In October 2014, the Fifth Circuit denied Conroy’s request to proceed with
a successive Section 2255 petition. In re John Alan Conroy, No. 14-10643 (5th
Cir. 2014). Among the reasons proffered for filing a successive petition, Conroy
asserted that discovery materials were not disclosed as part of an effort to coverup an unconstitutional interrogation and confession—i.e., where he was
threatened. Id., Memo in Support, p. 30. The appellate court concluded Conroy

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had failed to make a prima facie showing that he had newly discovered evidence;
motions for expansion of the record, discovery, and an evidentiary hearing were
denied.
A civil rights action regarding threats and coercion during his interrogation
was dismissed as time barred and frivolous. Conroy v. Rider, No. 13-cv-0149-C
(N.D. Tex. 2013); aff’d, No. 13-11054 (5th Cir. 2014).
The present Section 2241 action for issuance of a writ of habeas corpus
was initiated on May 11, 2015.
Arguments Presented
Petitioner Conroy now contends, first and foremost, that he is actually
innocent of the allegation of rape used in the indictment, plea and at sentencing.
He asserts the government knew the victim was still a virgin and the reported
injuries were false—as evidenced in the SANE report 2 of the victim’s medical
exam, which he did not receive until 255 days after he was sentenced.

More

specifically, Conroy argues that any juror would have concluded the victim had
not been raped as described in the presentence report because the SANE report
does not reflect that the anus and vagina were ripped apart, and that the victim
did not hurt so bad she was screaming.
Additional arguments for relief include that: (2) police only gained consent
to search by threatening to kill Conroy; (3) he was coerced into falsely confessing

2

“SANE” is the acronym for sexual assault nurse examiner.
See
https://www.ncjrs.gov/ovc_archives/reports/saneguide.pdf sane report. The SANE
report is attached to the amended petition (Doc. 10-1, pp. 2-8).
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after police promised leniency, threatened that Conroy would never make it to the
stand to testify, and threatening his family—all of which Conroy asserts is
captured on a video recording he has yet to secure, but which has been identified
by a private investigator; and (4) the aforementioned improprieties constitute a
“Brady violation.” 3
The amended petition seeks an order directing Texas authorities to
produce the interrogation video, which Conroy contends will evince police
misconduct and that he was never afforded the leniency promised. He otherwise
requests “any and all relief the Court deems appropriate.” (Doc. 10, p. 8).
Motions for Subpoenas
Before analyzing the petition itself, Conroy’s motions for issuance of
subpoenas (Docs. 11, 12) must be addressed, as they are intertwined in his claim
of actual innocence and his eligibility to proceed under Section 2241.
Conroy wants a subpoena to issue to the Texas Department of Public
Safety/Texas Rangers for information and evidence regarding his interrogation on
July 3, 2010. As indicated in the amended petition, Conroy believes the video
recording of his interrogation will reveal promises of leniency not kept, threats

3

The reference to Brady is unclear; two possible Supreme Court cases appear
relevant. First, Brady v. United States, 397 U.S. 742 (1970), which was
discussed relative to Conroy’s Section 2255 motion. In that case the Supreme
Court cautioned that a confession and guilty plea could be overturned because of
coercion, threats of violence and unfulfilled promises. Id. at 749-51. Second,
Brady v. Maryland, 373 U.S. 83 (1963)—also discussed relative to the Section
2255 motion—in which the government withheld until after trial, conviction and
sentencing evidence material to guilt or punishment favorable to the accused was
deemed a due process violation sufficient to warrant a retrial.
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and coercion. He asserts that this evidence has been withheld from him and,
therefore, has been unavailable to date. The targets of the other subpoenas are
not identified.
In accordance with Rule 6(a) of the Rules Governing Section 2254 Cases in
the U.S. District Courts the requests are construed as motions for discovery
subpoenas. A habeas petitioner is not entitled to discovery as a matter of right.
Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, Rule 6(a) requires leave of
court before discovery can be conducted in a habeas corpus action. In order to
satisfy Rule 6(a), a petitioner must: “(1) make a colorable claim showing that the
underlying facts, if proven, constitute a constitutional violation; and (2) show
“good cause” for the discovery.” Hubanks v. Frank, 392 F.3d 926, 933 (7th Cir.
2004) (internal citations omitted).
The wrongful withholding of a video recording of coercion and improper
inducements would support a constitutional violation similar to those in Brady v.
Maryland, 373 U.S. 83 (1963), and Brady v. United States, 397 U.S. 742 (1970).
However, Conroy has not shown good cause for permitting discovery in this
situation. Conroy does not allege that the video recording of his interrogation was
sought and improperly withheld (see Webster v. Daniels, 784 F.3d 1123, 113940 (7th Cir. 2015)), and he does not offer argument, an affidavit or other evidence
to support his assertion that a video recording exists and has been improperly
withheld from him.

Also, the withholding of discovery vis-a-vis his plea and

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sentencing was raised in Conroy’s Section 2255 motion and rejected.

See

Conroy, No. 12-cv-015, Doc. 8, pp. 6-9.
This appears more like a fishing expedition than discovery. In any event,
Section 2255, not Section 2241 is the correct avenue for presenting new evidence.
See 28 U.S.C. § 2255(h). For these reasons, the motions for issuance of a subpoena
(Docs. 11, 12) are DENIED.
Analysis of the 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 prisoner who has been convicted in federal court is generally limited to
challenging his conviction and sentence by bringing a motion pursuant to 28
U.S.C. § 2255 in the court which sentenced him. A motion under Section 2255 is
ordinarily the “exclusive means for a federal prisoner to attack his conviction.”
Kramer u. Olson, 347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is generally
limited to bringing only one motion 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

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law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable.” 28 U.S.C. § 2255(h).
However, it is possible, under very limited circumstances, for a prisoner to
challenge his federal conviction or sentence under Section 2241. The “savings
clause” in 28 U.S.C. § 2255(e) 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.” The Seventh Circuit construed the savings clause in
In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998):

“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.” Id. (emphasis added).
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 F3d 638, 640 (7th Cir. 2012).

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Recently, in Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015), the
Seventh Circuit reemphasized its view that that there is no absolute bar to the use
of the Section 2255(e) savings clause for new evidence.

Id. at 1125.

“[N]evertheless, … there must be some kind of structural problem with [S]ection
2255 before [S]ection 2241 becomes available. In other words, something more
than a lack of success with a [S]ection 2255 motion must exist before the savings
clause is satisfied.” Id. at 1136. The test remains whether Section 2255 is an
inadequate or ineffective remedy, meaning “whether it allows the petitioner “a
reasonable opportunity to obtain a reliable judicial determination of the
fundamental legality of his conviction and sentence.” Id. (quoting Davenport, 147
F.3d at 609). Conroy does not qualify under the savings clause.
Conroy’s argument regarding the 255-day delay in giving him the SANE
medical report was raised in his initial Section 2255 motion, and his arguments
about threats, coercion and a false confession were raised in both the initial
Section 2255 motion and in his motion for leave to file a successive Section 2255
motion.

With respect to the SANE report, it was available and addressed in

Conroy’s Section 2255 motion. More to the point, the fact that petitioner may be
barred from bringing a second/successive Section 2255 petition is not, in itself,
sufficient to render it an inadequate remedy. Davenport, 147 F.3d at 609–10.
Section 2255(h) specifically provides for situations involving newly discovered
evidence, and Conroy has not offered any other argument for why Section 2255 is

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inadequate.

He cannot be permitted to circumvent the restrictions in Section

2255(h) by merely refashioning his arguments into a Section 2241 petition.
At the risk of offering an advisory opinion, Conroy has also not made a
credible showing of actual innocence. He asserts that the SANE report disproves
the accusations of rape because the report indicates the victim is still a virgin.
This argument is based on the false premise that only vaginal penetration
constitutes rape.

Statutory rape under Texas law includes causing the

penetration of the anus or sexual organ of a child by any means, and causing the
penetration of the mouth of a child by the sexual organ of the actor. Tex. Penal
Code §§ 22.011(a)(2)(A)-(B).

Conroy’s other objections about the report not

reflecting that the anus and vagina were ripped apart, and the victim not hurting
so badly that she screamed, are not well taken. Conroy merely wants to argue
about matters of degree. The report reflects rectal bleeding, two half-centimeter
healed lacerations at the rectum—all considered consistent with the acts
described (see Doc. 10-1).
IT IS THEREFORE ORDERED that petitioner’s motions for issuance of
subpoenas (Docs. 11, 12) are DENIED.
IT IS FURTHER ORDERED that the amended Section 2241petition for
writ of habeas corpus (Doc. 10) is DISMISSED on the merits, with prejudice.
The Clerk is DIRECTED to close this case and enter judgment accordingly.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. 4(a)(4). A

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motion for leave to appeal in forma pauperis should set forth the issues petitioner
plans to present on appeal. See FED. R. APP. 24(a)(1)(C). If petitioner does choose
to appeal and is allowed to proceed as a pauper, he will be required to pay a
portion of the $505.00 appellate filing fee in order to pursue his appeal (the
amount to be determined based on his prison trust fund account records for the
past six months) irrespective of the outcome of the appeal. See FED. R. APP. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725–26 (7th Cir.
2008). A timely motion filed pursuant to Federal Rule of Civil Procedure 59(e)
may toll the 30–day appeal deadline. It is not necessary for petitioner to obtain a
certificate of appealability. Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir.2000).
IT IS SO ORDERED.
Signed this 17th day of July, 2015.

Digitally signed by
David R. Herndon
Date: 2015.07.17
16:41:32 -05'00'
United States District Judge

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