Bishop v. Cross, Jr.

Filing 5

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 11/12/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARCUS D. BISHOP,
# 21444-031,
Petitioner,
vs.
JAMES CROSS, Jr.,
Respondent.

Case No. 15-cv-1119-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Marcus Bishop is currently incarcerated in the Federal
Correctional

Institution

located

in

Greenville,

Illinois

(“FCI-Greenville”).

On October 9, 2015, he filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 (“original petition”) (Doc. 1) in this District.

The original

petition was not signed, so this Court ordered Bishop to file a properly signed
petition by November 17, 2015. (Doc. 2).
Bishop’s signed amended petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 followed on October 21, 2015 (“amended petition”). (Doc. 4).
In it, he challenges his enhanced sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2), based on the Supreme Court’s recent decision in

Johnson v. United States, -- U.S. --, 135 S. Ct. 2551, 2557 (2015). See United
States v. Jackson, et al., Case No. 11-cr-10161-JTM (D. Kan. 2011) (“criminal
case”).

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The amended petition is now before this Court for preliminary review. 1
(Id.). Rule 4 of the Federal Rules Governing Section 2254 Cases in 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. The amended petition is now subject to dismissal.
I.

Background

On August 14, 2011, Bishop and three others were indicted for bank
robbery, in violation of 18 U.S.C. § 2113(a). United States v. Jackson, et al., Case
No. 11-cr-10161-JTM (D. Kan. 2011) (“criminal case”). 2 (Doc. 4, p. 4). Bishop
was charged with one count of bank robbery, as well as aiding and abetting a
bank robbery, in a superseding indictment on September 11, 2011. 18 U.S.C. §§
2113(a), and 2. (Doc. 12, criminal case). On March 15, 2012, he entered into a
written plea agreement, in which he agreed to plead guilty to aiding and abetting,
in violation of §§ 2113(a) and 2. (Doc. 101, criminal case). His guilty plea was
accepted, and on July 5, 2012, Bishop was sentenced to 84 months
1

The amended petition (Doc. 4) supersedes and replaces the original (Doc. 1), rendering
the original petition VOID. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632,
638 n. 1 (7th Cir. 2004).
2
In order to determine Bishop’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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imprisonment, followed by 3 years of supervised release.
case).

(Doc. 134, criminal

He was ordered to pay a $100 assessment and $4,338 in restitution.

Judgment was entered the following day (Doc. 135, criminal case). Bishop did
not appeal his conviction or sentence.
On June 24, 2014, Bishop filed a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. Bishop v. United States, Case No. 14-cv-01189JTM (D. Kan. 2014) (“collateral attack”) (Doc. 1). He challenged the predicate
offenses used to enhance his sentence under Descamps v. United States, 133 S.
Ct. 2276 (2013).

On November 6, 2014, the United States District Court for

Kansas denied the § 2255 motion on three grounds. (Doc. 142, criminal case).
First, the district court found that the § 2255 motion was time-barred under §
2255(f), and the exception to the one-year statute of limitations for § 2255
motions was not triggered by Descamps because the Supreme Court did not make
that case retroactive. (Id.). Second, even if the Supreme Court made Descamps
retroactively applicable, it did not compel the district court to reach a different
conclusion in Bishop’s case. Third, Bishop waived any challenge to his sentence
under his written plea agreement. (Id.). The amended § 2241 petition followed.
(Doc. 4).
II.

Amended Habeas Petition

In the amended petition, Bishop again challenges his enhanced sentence
under the ACCA. Relying on the Supreme Court’s recent decision in Johnson v.

United States, 135 S. Ct. 2551 (June 26, 2015), Bishop argues that one of his

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prior state convictions 3 no longer qualifies as a “violent felony” under the ACCA’s
residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). (Doc. 4, pp. 2, 5).
Before commencing this habeas action, Bishop admits that he did not file
an application for permission to bring a second or successive § 2255 motion with
the United States Court of Appeals for the Tenth Circuit. But he insists that this
Court must “respect . . . [his] choice of statute to invoke his collateral attack,
whether it is § 2241 or § 2255, and resolve the case under that law.” (Doc. 4,
pp. 2-3).

Consistent with this argument, he asks that the Court not re-

characterize his petition as a § 2255 motion or deny it as a second or successive
§ 2255 motion. (Id.).
III.
A.

Discussion

Applicable Legal Standard
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may

not be used to raise claims of legal error in a conviction or sentence, 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 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 § 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).
The statute generally limits a prisoner to one challenge under § 2255.
3

It is not altogether clear which prior state conviction Bishop is challenging, as the
amended petition refers to a conviction for bank robbery (Doc. 4, p. 2) and for burglary
of a dwelling (doc. 4, p. 5).
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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).
Under limited circumstances, a prisoner may challenge his conviction or
sentence under § 2241.

Section 2255(e) contains a “savings clause” that

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 United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
The Seventh Circuit construed the savings clause in In re Davenport, 147 F.3d
605 (7th Cir. 1998), and its progeny.
In order to fit within the savings clause, three conditions must be satisfied.
First, a petitioner must show that he relies on a new statutory interpretation case
rather than a constitutional case.

Second, he must show that he relies on a

decision that he could not have invoked in his first § 2255 motion and the new
rule must apply retroactively. Last, 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); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012).

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B.

Analysis
Bishop relies entirely on Johnson in bringing the instant challenge to his

sentence. Johnson, 135 S. Ct. 2551 (2015). The Supreme Court in Johnson
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 residual clause is unconstitutionally vague. Id. But Johnson
does not open the door to relief under § 2241 at this time.
On August 4, 2015, the Seventh Circuit held that Johnson announces a
new substantive rule of constitutional law that is retroactively applicable in a
collateral attack on a final conviction, and the Seventh Circuit granted a prisoner’s
request to file a second or successive § 2255 petition on the basis of Johnson.

See Price v. United States, 795 F.3d 731, 732 (7th Cir. 2015) (authorizing
prisoner to file successive § 2255 petition because “Johnson announces a new
substantive rule of constitutional law that the Supreme Court has categorically
made retroactive to final convictions”).

Price indicates that a motion filed

pursuant to § 2255 is the primary vehicle for seeking relief based on Johnson.

Id.; Stork v. United States, No. 15-2687, 2015 WL 5915990, at *1 (7th Cir. Aug.
13, 2015) (citing Price and authorizing district court to consider second or
successive § 2255 petition based on Johnson argument).
Bishop admits that he did not first seek permission to file a second or
successive § 2255 motion in the Tenth Circuit before turning to this Court for
relief under § 2241. Instead, he insists that this Court must respect his right to

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choose § 2255 or § 2241.

(Doc. 4, p. 3).

Although the Court will not re-

characterize a § 2241 petition as a § 2255 motion, Bishop is not relieved of the
obligation to first seek permission to file a second or successive § 2255 motion
and pursue that avenue to relief before turning to this Court under § 2241.

Collins v. Holinka, 510 F.3d 666, 667 (7th Cir. 2007) (“judges must respect the
plaintiff’s choice of statute to invoke-whether § 2241, § 2255, or 42 U.S.C. § 1983and give the action the treatment appropriate under the law”).
Even if he had done so, however, Bishop would still not be entitled to relief
under § 2241. This is because the first Davenport requirement is not satisfied.

Johnson is not a new statutory interpretation case. Johnson announces a new
rule of constitutional law. See Price v. United States, 795 F.3d at 732. Therefore,
it cannot provide a basis for relief under § 2241. See Brown, 719 F.3d at 586;

Bailey v. Cross, No. 15-cv-819-DRH, 2015 WL 5173525, at *2 (S.D. Ill. Sept. 2,
2015). Accordingly, Bishop does not qualify to use the “savings clause” under
§ 2255(e), and his amended petition must be dismissed without prejudice.
If Bishop decides to pursue relief under § 2255, he must seek permission
to file a second or successive § 2255 motion with the Tenth Circuit Court of
Appeals, which is the federal court of appeals of the circuit where he was
sentenced.

See 28 U.S.C. § 2244(b)(3).

This Court expresses no opinion

regarding the merits or outcome of an application filed in the Tenth Circuit.

But see In re Gieswein, No. 15-6138, 2015 WL 5534388, at *3 (10th Cir. Sept. 21,
2015) (denying prisoner’s application for permission to file second or successive

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motion to vacate sentence after holding that Johnson, although announcing a new
rule of constitutional law, is not retroactively applicable). Bishop should note that
28 U.S.C. § 2255(f)(3) requires that a § 2255 motion relying on a newly
recognized right must be filed within one year from “the date on which the right
asserted was initially recognized by the Supreme Court.”

Id.

Johnson was

decided by the Supreme Court on June 26, 2015. The one-year period prescribed
by § 2255(f)(3) runs from the date of the Supreme Court’s ruling initially
recognizing the right asserted, and not from the date that the right was found to
be retroactive. Dodd v. United States, 545 U.S. 353, 357 (2005).
IV.

Disposition

IT IS HEREBY ORDERED that the original petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), which was superseded and
replaced by the amended petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 (Doc. 4) is DISMISSED as VOID.
IT IS FURTHER ORDERED that, for the reasons stated above, the
amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 4)
is DISMISSED without prejudice. The CLERK is DIRECTED to CLOSE this
case and enter judgment accordingly.
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).

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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, 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

Digitally signed by
Judge David R.
Herndon
Date: 2015.11.12
11:20:03 -06'00'

(7th Cir. 2000).
IT IS SO ORDERED.
DATED: 11/12/2015

District Judge

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