Taylor v. Cross, Jr.

Filing 3

It is HEREBY ORDERED that within thirty days of the date this order isentered, respondent shall brief the following two issues for the Court: First, what impact, if any, does Johnson have on petitioner's current sentence? And second, is the Southern District of Illinois a proper venue to resolve petitioner's request for relief, or should this matter be transferred to the district court where petitioner was sentenced? Signed by Judge David R. Herndon on 7/29/2015. (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:
Petitioner, currently incarcerated in FCI-Greenville, Illinois, brings this
habeas

corpus

action

pursuant

to 28

constitutionality of his confinement.

U.S.C.

§ 2241

to

challenge

the

He relies on the recent decision of the

Supreme Court in Johnson v. United States, which held that imposing an
increased sentence under the “residual clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), violates due process because the clause is
unconstitutionally vague. Johnson, 135 S. Ct. 2551 (June 26, 2015).
This case is now before the Court for a preliminary review of the petition
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)

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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.
The Petition
In the District Court for the Central District of Illinois, petitioner pled guilty
to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Doc.
1-1, p. 1).

United States v. Taylor, Case No. 08-cv-20059 (C.D. Ill.). He was

found to be an armed career criminal under 18 U.S.C. § 924(e)(2)(B)(ii) (the
“residual clause”), and on July 22, 2009, was sentenced to 15 years in prison.
This enhanced sentence was based in part on a 1999 Macon County, Illinois,
conviction for aggravated discharge of a firearm, which was considered to be a
crime of violence under the ACCA’s residual clause (Doc. 1-1, p. 3).
Petitioner did not file a direct appeal. He did pursue relief under 28 U.S.C.
§ 2255, but did not raise the issue he relies on herein.
In the instant petition, Taylor argues that Johnson is a “retroactive
substantive change in decisional law” that establishes his “actual innocence” of
violating § 924(e) (Doc. 1-1, p. 3). Further, he asserts that § 2255 is inadequate
or ineffective to provide a remedy, because Johnson “narrowed the scope” of the
ACCA “by interpreting its terms,” and was decided after the conclusion of his
initial § 2255 motion (Doc. 1, p. 4). He asks this Court to vacate his enhanced
sentence, and remand his case to the trial court for resentencing.
Discussion
Petitioner’s characterization of the Johnson case indicates that he is

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attempting to bring his § 2241 challenge pursuant to the “savings clause” of 28
U.S.C. § 2255(e).

This section 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 Hill v. Werlinger, 695 F.3d
644, 648 (7th Cir. 2012) (“‘Inadequate or ineffective’ means that ‘a legal theory
that could not have been presented under § 2255 establishes the petitioner's
actual innocence.’”) (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002).
The limitations in § 2255 on bringing a second or successive motion do not
render § 2255 inadequate.

In re Davenport, 147 F.3d 605, 609-10 (7th Cir.

1998). Instead, a petitioner under § 2241 must demonstrate the inability of a
§ 2255 motion to cure the defect in the conviction. “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.” Davenport, 147 F.3d at 611.
Under Seventh Circuit precedent, a § 2241 petitioner must meet three
conditions in order to fit within the savings clause following Davenport. 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

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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).
This Court understands Johnson to be a constitutional case, not a statutory
interpretation case as petitioner seeks to characterize it. Thus, it would appear to
fall outside the scope of § 2255’s “savings clause” on that basis alone. Further, no
court has yet held that Johnson will apply retroactively to collateral attacks on a
sentence.
Nonetheless, due to the limited record before the Court at this stage
regarding petitioner’s conviction and the basis for the trial court’s sentencing
decision, and in light of the still-developing application of the holding in Johnson,
the Court concludes that this action is not subject to dismissal pursuant to Rule
4. Accordingly, a response shall be ordered.
It is HEREBY ORDERED that within thirty days of the date this order is
entered, 1 respondent shall brief the following two issues for the Court: First, what
impact, if any, does Johnson have on petitioner’s current sentence? And second,
is the Southern District of Illinois a proper venue to resolve petitioner’s request
for relief, or should this matter be transferred to the district court where
petitioner was sentenced? 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,
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.

1

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9 Executive Drive, Fairview Heights, Illinois 62208, shall constitute sufficient
service.
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 (7) 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.

Digitally signed
by David R.
Herndon
Date: 2015.07.29
16:44:14 -05'00'

41(b).
IT IS SO ORDERED.
Dated: July 29, 2015

United States District Judge

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