Taylor v. Cross, Jr.

Filing 12

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 9/11/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DUWAYNE M. TAYLOR,
No. 14895-026,
Petitioner,
vs.

Case No. 15-cv-735-DRH

JAMES CROSS, JR.
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter comes before the Court on several motions filed by respondent
(Docs. 9, 10, & 11). The motion seeking leave to file an instanter response (Doc.
10) is GRANTED. The response, in the form of a motion to dismiss the action on
procedural grounds, has been filed at Doc. 11. That motion to dismiss shall also
be GRANTED, which renders moot the motion (Doc. 9) seeking an extension of
time.
As respondent correctly points out, “[f]ederal prisoners who seek to bring
collateral attacks on their conviction or sentences must ordinarily bring an action
under 28 U.S.C. § 2255, ‘the federal prisoner’s substitute for habeas corpus.’ ”

Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (quoting Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012)). The exception to this rule is when a § 2255
remedy “is inadequate or ineffective to test the legality of his detention.” See 28
U.S.C. § 2255(e). In re Davenport, 147 F.3d 605 (7th Cir. 1998), established
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three conditions for when this exception applies. Id. at 610-12. First, a petitioner
“must show that he relies on a statutory-interpretation case rather than a
constitutional case;” second, he “must show that he relies on a retroactive
decision that he could not have invoked in his first § 2255 motion;” and third,
“[the] sentence enhancement [must] have been a grave enough error to be deemed
a miscarriage of justice corrigible therefore in a habeas corpus proceeding.”

Brown v. Caraway, 719 F.3d 583, 586 (7th Cir.2013) (citations omitted) (internal
quotation marks omitted).
The Court agrees that petitioner’s claim is not one that falls within the
“savings clause” of § 2255(e), thus it is not properly brought under § 2241.

Johnson v. United States, 135 S. Ct. 2551 (2015), is a constitutional case, not a
statutory-interpretation case. For this reason, the instant § 2241 action shall be
dismissed. Further, recent developments within the Seventh Circuit indicate that
28 U.S.C. § 2255 may be available as a vehicle for prisoners who were sentenced
under the now-invalidated “residual clause” of the Armed Career Criminal Act to
bring a claim under Johnson.
On August 4, 2015, the Seventh Circuit authorized the District Court to
consider a second or successive § 2255 motion which sought relief pursuant to

Johnson.

Price v. United States, 795 F.3d 731 (7th Cir. 2015); see also

§ 2255(h)(2).

Price suggests that a motion filed pursuant to § 2255 is the

appropriate vehicle to bring a Johnson claim.

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If petitioner decides to bring his claim under § 2255, he is advised that
because he previously filed a § 2255 motion, he, like the petitioner in Price, would
need to seek permission to file a second or successive § 2255 motion with the
federal Court of Appeals of the circuit in which he was sentenced. See 28 U.S.C.
§ 2244(b)(3). In his case, since he was convicted in the Central District of Illinois,
he must apply to the Seventh Circuit. Petitioner is also cautioned that there is a
one-year time limit on bringing such an action. See 28 U.S.C. § 2255(f).
Disposition
The motion for extension of time (Doc. 9) is TERMINATED as MOOT. The
motion for leave to file instanter response (Doc. 10) and the motion to dismiss
(Doc. 11) are GRANTED.
This § 2241 action is DISMISSED with prejudice.
If petitioner wishes to appeal this dismissal, his notice of appeal must be
filed with this court within thirty days of the entry of judgment. FED. R. APP. P.
4(a)(1(A). A motion for leave to appeal in forma pauperis (“IFP”) should set forth
the issues petitioner plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C).
If petitioner does choose to appeal and is allowed to proceed IFP, he will be liable
for a portion of the $505.00 appellate filing fee (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. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan

v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464,

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467 (7th Cir. 1998). A proper and timely motion filed pursuant to Federal Rule of
Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4).
A Rule 59(e) motion must be filed no more than twenty-eight (28) days after the
entry of the judgment, and this 28-day deadline cannot be extended. It is not
necessary for petitioner to obtain a certificate of appealability in an appeal from
this petition brought under §2241. Walker v. O’Brien, 216 F.3d 626, 638 (7th
Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.

Digitally signed by
David R. Herndon
Date: 2015.09.11
09:37:46 -05'00'

IT IS SO ORDERED.
Dated: September 11, 2015

United States District Judge

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