Perkins v. USA

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 2/8/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMMARO PERKINS,
No. 07580-025,
Petitioner,
vs.

Case No. 16-cv-1114-DRH

USA,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in Satellite Camp at the USP-Marion,
brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the
constitutionality of his confinement.

He is serving a 180-month 1 sentence for

possession with intent to distribute crack cocaine and marijuana, possession of a
firearm by a convicted felon, and possession of a firearm in furtherance of a drugtrafficking crime. United States v. Perkins, Case No. 05-cr-30137-DRH (S.D. Ill.);

aff’d, United States v. Perkins, 548 F.3d 510 (7th Cir. 2008); see also Perkins v.
United States, Case No. 10-cv-104-DRH (28 U.S.C. § 2255 proceeding) (Doc. 16).
The sentence was imposed on September 28, 2007, following a jury trial. (Doc.
74 in criminal case).

The original 210-month sentence was reduced in 2015 to 180 months pursuant to
Petitioner’s motion filed following amendment of the sentencing guidelines for crack
cocaine. (See Docs. 111, 112 in criminal case).
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In the present action, Petitioner challenges only his “possession of a firearm
in furtherance” conviction under 18 U.S.C. § 924(c)(1)(A). He contends that this
conviction is invalid under Bailey v. United States, 457 U.S. 137, 143 (1995), and
that he is therefore actually innocent of the offense. In his one-page pleading,
Petitioner does not describe any of the facts relating to his conviction, but argues
that “mere possession” of a weapon, without a showing that the weapon was
actually used in furtherance of the crime, is insufficient to sustain a conviction
under § 924(c). He cites cases noting that a court must consider factors including
whether the gun was loaded, the type of weapon, the legality of its possession, the
type of drug activity conducted, and the time and circumstances under which the
gun was found. (Doc. 1, p. 1).
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)
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.

After carefully

reviewing the petition, the Court concludes that this action is subject to dismissal.
Discussion
As a general matter, “28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide

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federal prisoners with distinct forms of collateral relief. Section 2255 applies to
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) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir.
2000). See also Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v.

United States, 138 F.3d 693, 694 (7th Cir. 1998). Because Petitioner herein is
attacking the validity of his sentence, a § 2255 motion is the proper avenue for
relief. In 2010, Petitioner in fact brought a motion pursuant to § 2255, but did
not succeed in that challenge. Perkins v. United States, Case No. 10-cv-104-DRH.
Under very limited circumstances, a prisoner may employ § 2241 to
challenge his federal conviction or sentence.

28 U.S.C. § 2255(e) contains a

“savings clause” which 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, 695 F.3d at 648 (“‘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). See also United States v. Prevatte, 300 F.3d 792,
798-99 (7th Cir. 2002). The fact that petitioner may be barred from bringing a
second/successive § 2255 petition is not, in itself, sufficient to render it an
inadequate remedy.

In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998)

(§ 2255 limitation on filing successive motions does not render it an inadequate
remedy for a prisoner who had filed a prior § 2255 motion). Instead, a petitioner

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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.
The Seventh Circuit has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. 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
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).
Petitioner fails to meet these conditions. The cases he invokes to support
his argument were all decided prior to his 2007 conviction:

Bailey v. United

States, 457 U.S. 137, 143 (1995); United States v. Combs, 369 F.3d 925 (6th Cir.
2004); United States v. Mackey, 265 F.3d 457 (6th Cir. 2001); and United States

v. Feliz-Cordero, 859 F.2d 250 (2d Cir. 1988).

Thus, none of these cases

qualifies as a “new” case that was unavailable to Petitioner in his earlier
challenges to his conviction. Not only could Petitioner have raised any of these

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cases in his § 2255 motion, he could have brought an argument based on these
authorities during his jury trial and on his direct appeal. Finally, Petitioner puts
forth no argument or authority to demonstrate a “fundamental defect” in his
conviction or sentence.

For these reasons, the § 2241 petition is subject to

dismissal.
Disposition
To summarize, Petitioner has not demonstrated that § 2255 is an
inadequate remedy for his current claims, and consistent with In re Davenport, he
cannot raise these claims through a § 2241 petition. Davenport, 147 F.3d 605
(7th Cir. 1998).

Accordingly, the petition is summarily DISMISSED with

prejudice.
If Petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(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
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)

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may toll the 30-day appeal deadline. 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 from
this disposition of his § 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
Signed this 8th day of February, 2017

Digitally signed by
Judge David R. Herndon
Date: 2017.02.08
13:31:27 -06'00'
United States District Judge

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