Johnson v. Powers

Filing 5

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 12/9/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BENJAMIN JOHNSON,
Petitioner,
vs.
WARDEN POWERS,
Respondent.

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Case No. 3:16-cv-1028-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Benjamin Johnson is currently incarcerated at the United States
Penitentiary in Marion, Illinois. (Doc. 1 at 1.) Proceeding pro se, Johnson has
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241,
challenging his 2007 cocaine and money laundering conspiracy convictions in the
United States District Court for the Eastern District of Michigan.

Johnson

contends that the United States and the sentencing judge improperly used
information about his relevant drug quantity to increase his sentence; that the
sentencing judge made a number of other errors in connection with a sentencing
enhancement and Johnson’s relevant criminal history; and that the United States
failed to live up to its promise to move for a reduction to his sentence given
Johnson’s assistance to the Government.
This matter is now before the Court for a preliminary review of Johnson’s
petition. Rule 4 of the Rules Governing Section 2254 Cases provides that, upon
preliminary review by the district judge, “[i]f it plainly appears from the petition
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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.
Background
Johnson’s petition is light on background facts, so the following history is
borrowed from the Sixth Circuit’s ruling on Johnson’s direct appeal. See United

States v. Johnson, 371 F. App’x 631, 633 (6th Cir. 2010). Johnson was part of
the “Black Mafia Family,” a large cocaine distribution conspiracy based in Detroit.
In 2005, he was indicted by a federal grand jury for conspiring to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 846; for
possession with intent to distribute more than 500 grams of cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)1; and for conspiracy to launder monetary
instruments in violation of 19 U.S.C. §§ 1956(a)(1) and 1956(h).

In 2007,

Johnson pled guilty to conspiracy to distribute five or more kilograms of cocaine
and to conspiracy to launder monetary interests.

By way of a separate

cooperation agreement, the United States agreed to move for a reduction to
Johnson’s sentence under § 5K1.1 of the United States Sentencing Guidelines or
under Federal Rule of Criminal Procedure 35, but only if the United States
determined that Johnson indeed provided substantial help to it.
In preparation for sentencing, the United States Probation Office prepared a
presentence investigation report.

The presentence report concluded that

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Johnson’s offense level was 38—a number two points higher than the offense level
computed by the plea agreement, as Johnson proved ineligible for the two-point
safety valve reduction of Section 2D1.1(b)(9) of the Sentencing Guidelines.
Johnson was not eligible for that reduction, according to the Probation Office,
because he was a manager or leader of others involved in the offense and because
he had more than one criminal history point.

Johnson’s advisory guidelines

range, based on an offense level of 38 and a criminal history category of II, was
262 to 327 months of imprisonment.
After the presentence report was submitted, the district judge held a
sentencing hearing on May 12, 2008. At that hearing, Johnson’s lawyer argued
that Johnson should get credit for the time he served in a state prison during the
pendency of his federal case. The district judge initially denied the request but
later decided that Johnson’s lawyer should be given an opportunity to brief the
matter, so he deferred the sentencing hearing and heard arguments from both
sides. A second sentencing hearing was held on November 17, 2008. At that
hearing, the parties and the district judge agreed that the appropriate guideline
range was set forth in the Probation Office’s presentence report, and that Johnson
should receive some credit for the time he spent in state prison while awaiting
federal sentencing.

The district judge sentenced Johnson to 150 months in

prison. At the end of the hearing, Johnson himself asked that his plea agreement
be set aside and that he be allowed to proceed to trial, but the district judge
denied Johnson’s request and held fast to the sentence.

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Johnson appealed his conviction and his sentence, but the Sixth Circuit
rejected that challenge and affirmed his conviction on April 6, 2010. A search of
public court records does not immediately reveal a 28 U.S.C. § 2255 petition by
Johnson, but Johnson has brought another § 2241 petition beyond the instant
one in this Court—on March 4, 2016, he sued the Warden of Marion alleging that
the Bureau of Prisons had not properly calculated his past incarceration credit
and thus he was being held improperly in federal prison.

Johnson filed the

instant § 2241 petition on September 13, 2016.
Discussion
Johnson’s current § 2241 petition seems to assert three basic claims: he
maintains that the United States breached Section 1B1.8 of the United States
Sentencing Guidelines when it used some of the information Johnson provided to
the Government to calculate Johnson’s relevant drug quantity for sentencing
purposes; that there were other errors in the relevant drug quantity calculation
and criminal history calculation in the Probation Office’s presentence investigation
report; and that the Michigan sentencing judge erred in applying a managerial role
enhancement to Johnson’s sentence.

(Doc. 1 at 1-3.)

By way of a motion to

amend his petition, Johnson also claims that the United States failed to live up to
its agreement to move for a sentence reduction based on Johnson’s assistance to
the United States. (Doc. 1-1 at 3.)
As a general matter, “28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide
federal prisoners with distinct forms of collateral relief. Section 2255 applies to

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challenges to the validity of convictions and sentences, whereas § 2241 applies to
challenges to the fact or duration of confinement.” Hill v. Werlinger, 695 F.3d
644, 645 (7th Cir. 2012); see also Garza v. Lappin, 253 F.3d 918, 921 (7th Cir.
2001) (“In general, federal prisoners who wish to attack the validity of their
convictions or sentences are required to proceed under § 2255.”). Here, Johnson
is attacking his conviction and the length of the sentence imposed by the Michigan
district judge, and thus a § 2255 motion, submitted to the Michigan judge who
actually sentenced him, is the proper avenue of relief.
It is true that, under limited circumstances, a prisoner may use § 2241 to
challenge his conviction. Section 2255 contains a “savings clause” which allows a
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). That said,
the mere fact that a petitioner may be barred from bringing a § 2255 petition at
present is not, in and of itself, sufficient to render § 2255 inadequate.

In re

Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998). Instead, a petitioner must
demonstrate the complete inability of a § 2255 motion to cure the defect in the
conviction. Id. at 611. In the end, a petitioner must establish three points to
come within the savings clause: first, he must rely on a statutory interpretation
case rather than a constitutional case; second, he must rely on a retroactive
decision that he could not have invoked in his first § 2255 motion because the
position was “foreclosed by binding precedent” at the time; and third, he must
show that there has been a “fundamental defect” in his conviction that is grave

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enough to be deemed a miscarriage of justice. Brown v. Caraway, 719 F.3d 583,
586-87 (7th Cir. 2012).
Johnson makes no argument anywhere in his petition or supporting
materials that his challenges come within the savings clause in § 2241, and any
argument like that would fail. Johnson’s garden variety challenges to the United
States’ conduct at sentencing related to Section 1B1.8 of the Guidelines and to the
presentence investigation report’s errors could have been challenged on direct
appeal or, at the least, attacked by way of an ineffective assistance claim under §
2255.

Those arguments do not rely on any new retroactive authority decided

since the time that Johnson could have challenged his sentence by way of a §
2255 petition before his actual sentencing judge, meaning that the savings clause
does not apply and § 2241 is an improper avenue for relief. See Poe v. LaRiva,
834 F.3d 770, 773 (7th Cir. 2016).
Likewise, Johnson’s claim that the United States did not honor its
agreement to move for a sentence reduction is not grist for § 2241 relief for two
reasons. For one, these types of claims are properly submitted to the sentencing
court by way of a motion under § 2255 or a motion linked to Federal Rule of
Criminal Procedure 35, and not by way of a § 2241 petition to the district of
incarceration.

See Jackson v. Pitzer, 108 F.3d 1379 (7th Cir. 1997) (claim

seeking to “vacate [a] sentence because the government breached its agreement to
file a Rule 35(b) motion” must “be brought under § 2255”); see also Brestle v.

Flournoy, No. 2:15-cv-54, 2016 WL 1090596, at *2-4 (S.D. Ga. Mar. 18, 2016);

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Whitaker v. Dunbar, 83 F. Supp. 3d 663, 668 (E.D.N.C. 2014); McCloud v.
Martin, No. 1:10-cv-144, 2011 WL 5837247, at *1 (E.D. Tex. Aug. 5, 2011);
Saldana v. United States, No. 3:07-cv-890, 2008 WL 4406358, at *2 (D. Conn.
Sept. 23, 2008). More fundamentally, Johnson already raised this claim to the
Sixth Circuit in the direct appeal of his sentence and the Sixth Circuit rejected it.

Johnson, 371 F. App’x at 635-36.

Section 2241 typically cannot be used to

relitigate claims already decided during a direct appeal or during a related habeas
proceeding.

E.g., Susinka v. Copenhaver, 538 F. App’x 724, 724-25 (7th Cir.

2013); Hernandez v. Owen, 555 F. App’x 944, 944-45 (11th Cir. 2014); Crosby v.

Brook, 353 F. App’x 591, 593 (2d Cir. 2009).
Disposition
Because the claims in Johnson’s § 2241 petition are not properly sought via
§ 2241, Johnson’s § 2241 petition is DISMISSED with prejudice. His motion to
amend (Doc. 4) is DENIED as futile, as the additional claim within the motion is
not cognizable by way of a § 2241 petition in this Court.
If Johnson wishes to appeal the Court’s ruling, he may file a notice of
appeal with this Court within the appropriate time period for his case, as set forth
in Federal Rule of Appellate Procedure 4. A motion for leave to appeal in forma

pauperis should set forth the issues petitioner plans to present on appeal. See
FED. R. APP. P. 24(a)(1)(C). If petitioner chooses to appeal and is allowed to
proceed as a pauper, he will be liable for a portion of the $505.00 appellate filing
fee (the amount to be determined based on his trust fund account records for the

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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). A proper and timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the deadline for a notice of appeal. A Rule 59(e) motion
must be filed no more than twenty-eight days after the entry of the judgment, and
this deadline cannot be extended.
Given the circumstances of Johnson’s case, it is not necessary for him to
obtain a certificate of appealability before he may file an appeal with the Seventh
Circuit. See Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The CLERK is DIRECTED to enter judgment consistent with this order.
IT IS SO ORDERED.
DATED: December 9, 2016

Digitally signed by
Judge David R. Herndon
Date: 2016.12.09
15:20:15 -06'00'
United States District Judge

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