Simpson v. Cross

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 8/26/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER SIMPSON,
No. 36818-044
Petitioner,
vs.

Case No. 15-cv-853-DRH

JAMES CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the FCI-Greenville, Illinois, brings this
habeas

corpus

action

pursuant

to 28

U.S.C.

§ 2241

to

challenge

the

constitutionality of his confinement. He argues that under the recent decision of
the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015),
his enhanced career-offender sentence is unconstitutional. Without commenting
on the merits of petitioner’s claims, the Court concludes that the petition survives
preliminary review under Rule 4 and Rule 1(b) 1 of the Rules Governing Section
2254 Cases in United States District Courts.
The Petition
Petitioner pled guilty in the Eastern District of Missouri, Case No. 09-cr120, to being a felon in possession of a firearm (Doc. 1, pp. 1-2).

1

He was

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other
habeas corpus cases.
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sentenced on September 28, 2010, to 180 months in prison.

The trial court

determined that he had three prior “violent felony” convictions within the meaning
of the Armed Career Criminal Act (“ACCA”), and imposed the enhanced sentence
accordingly.
Petitioner now argues that under Johnson, his prior felony convictions (for
Missouri Second Degree Robbery, Illinois Aggravated Battery, and Illinois
Domestic Battery) should not be counted as “violent felonies,” as the residual
clause of the ACCA is no longer valid. He seeks to be re-sentenced without the
career-criminal enhancement.
Discussion
The high court held in Johnson 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).
On August 4, 2015, the Seventh Circuit concluded that Johnson announces
a new substantive rule of constitutional law that is retroactively applicable in a
collateral attack on a final conviction. Price v. United States, Case No. 15-2427,
2015 WL 4621024 (7th Cir. Aug. 4, 2015) (authorizing District Court to consider
second or successive § 2255 motion seeking relief under Johnson). In light of
that decision and the possibility that petitioner may be entitled to relief, the
government shall be ordered to respond to the instant petition.

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However, petitioner should bear in mind the following cautionary notes.
First, petitioner is reminded that Johnson did not invalidate the ACCA in its
entirety. Prior violent felonies that were properly determined at sentencing to fall
either into the category of one of the enumerated offenses (generic burglary, arson,
extortion, or any offense that involves the use of explosives) or offenses which had
as an element the use, attempted use, or threatened use of physical force against
the person of another remain valid predicate offenses for purposes of sentencing
enhancements under the ACCA.
Secondly, “[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 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).

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The Seventh Circuit in Price authorized the District Court to consider a
second or successive § 2255 motion which sought relief pursuant to Johnson.

Price v. United States, Case No. 15–2427, 2015 WL 4621024, at *1 (7th Cir. Aug.
4, 2015). Price seems to suggest that a motion filed pursuant to § 2255 is the
appropriate vehicle to bring a Johnson claim.

If petitioner decides to pursue

relief under § 2255, he is advised that because he previously filed a § 2255, 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).
That being said, the petition pending before this Court was filed pursuant
to 28 U.S.C. § 2241, and cannot be re-characterized as a § 2255 motion.

In

Collins v. Holinka, 510 F.3d 666, 667 (7th Cir. 2007), the Seventh Circuit held
that “judges must respect the plaintiff's choice of statute to invoke – whether §
2241, § 2255, or 42 U.S.C. § 1983 – and give the action the treatment appropriate
under that law.”

Because Johnson has broken ground in an area with little

precedent, the Court will allow petitioner to proceed, at least for now, on his
theory that a § 2255 motion is inadequate or ineffective.
IT IS HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this order is entered (on or before September
25, 2015). 2 This preliminary order to respond does not, of course, preclude the
Government from raising any objection or defense it may wish to present. Service
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.

2

Page 4 of 5

upon the United States Attorney for the Southern District of Illinois, 750 Missouri
Avenue, East St. Louis, Illinois, shall constitute sufficient service.
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 (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: 2015.08.26
13:19:38 -05'00'

41(b).
IT IS SO ORDERED.
Dated: August 26, 2015

United States District Court

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