DeCarlo v. True

Filing 4

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 8/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS REID DECARLO,
#18885-076,
Petitioner,

Case No. 17 cv–557 DRH

vs.
B. TRUE,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Thomas DeCarlo, who is currently incarcerated in the Federal
Correctional Institution in Marion, Illinois, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). In the Petition, he argues that his
federal conviction under 18 U.S.C. § 2241(c) should be vacated because 18 U.S.C.
§ 2241(c) was enacted in violation of Article I of the Constitution and thus is
invalid. (Doc. 1).
Background
Petitioner was convicted in 2004 of interstate travel to engage in sexual
contact with a child under the age of twelve in the Western District of Tennessee,
No. 2:03-cr-20093. (Doc. 1, p. 3). He is serving a sentence of 293 months of
imprisonment in the custody of the Federal Bureau of Prisons. Id. Petitioner
appealed his conviction to the Sixth Circuit Court of Appeals, but his sentence
and conviction under 18 U.S.C. § 2241(c) were not overturned. Id. Plaintiff has
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repeatedly attempted to challenge his conviction ever since. He has filed a motion
to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 in the United
States District Court for the Western District of Tennessee, where he was
sentenced. See United States v. DeCarlo, No. 06-2398-B/V, 2007 WL 1345320
(W.D. Tenn. May 7, 2007) (order denying DeCarlo’s motion for Section 2255
relief). This action was unsuccessful. Id.
In 2010, Petitioner filed an action under 28 U.S.C. § 2241 in this Court,
arguing, among other things, that Title 18 of the United States Code was enacted
in violation of Article I of the Constitution and thus is invalid. See DeCarlo v.

Hollingsworth, No. 10-cv-0481-GPM (S.D. Ill. Dec. 10, 2010).

The Court

dismissed the action with prejudice because the legal theories presented did not
rely upon changes in the law that postdated his earlier motion under 28 U.S.C. §
2255. Id. at (Doc. 5). In 2012, Petitioner attempted to take another bite at the
apple and filed another action under § 2241 in this Court. See DeCarlo v. Walton,
No. 12-cv-639-DRH (S.D. Ill. Sept. 12, 2013). His action was dismissed again,
because his first was dismissed with prejudice, and because the grounds
advanced in his petition, some of the same grounds advanced in the instant
Petition, did not rely on a change in the law that occurred after his § 2255 motion
was denied. Id. at (Doc. 7). Petitioner appealed the Court’s dismissal of his 2012
action, and the Seventh Circuit Court of Appeals affirmed the dismissal, noting
that the petition should have been dismissed for lack of jurisdiction because “the
motion was a successive collateral attack on his conviction, filed without [the

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Seventh Circuit’s] permission.” Id. at (Doc. 20-2).
Rule 4 of the Rules Governing Section 2254 cases in United States District
Courts 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 cases.

After

carefully reviewing DeCarlo’s Petition, the Court concludes that DeCarlo is not
entitled to relief and that his Petition must be dismissed.
Discussion
Petitioner’s action must fail because Petitioner has previously had actions
under § 2241, bringing forth the same legal theories, dismissed with prejudice.
Petitioner has also not been granted leave by the Seventh Circuit to file a
successive collateral attack, which the Seventh Circuit noted would be required in

DeCarlo v. Walton, No. 13-1875 (7th Cir. Sept. 12, 2013) under very similar
circumstances. This alone is enough to preclude Petitioner’s claims.
Even absent the filing and dismissal of the first and second § 2241
petitions, the present Petition could not survive. Normally, a person may
challenge his federal conviction only by means of a motion brought before the
sentencing court pursuant to 28 U.S.C. § 2255, and this remedy normally
supersedes the writ of habeas corpus. A § 2241 petition by a federal prisoner is
generally limited to challenges to the execution of the sentence. Valona v. United

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States, 138 F.3d 693, 694 (7th Cir. 1998); Atehortua v. Kindt, 951 F.2d 126, 129
(7th Cir. 1991). Federal prisoners may utilize § 2241, however, to challenge the
legality of a conviction or sentence in cases under the “savings clause” of §
2255(e). The savings clause allows a petitioner to bring a claim under § 2241,
where he can show that a remedy under § 2255 is inadequate or ineffective to test
the legality of his detention. Id. See also United States v. Prevatte, 300 F.3d 792,
798-99 (7th Cir. 2002).
The Court of Appeals for the Seventh Circuit has held that § 2255 is only
inadequate or ineffective when three requirements are satisfied: 1) the petitioner
relies on a new case of statutory interpretation rather than a constitutional
decision; 2) the case was decided after his first § 2255 motion but is retroactive;
and 3) the alleged error results in a miscarriage of justice. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios, 696 F.3d 638, 640 (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.’” Hill

v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (citing Taylor v. Gilkey, 314 F.3d
832, 835 (7th Cir. 2002)); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998)).
The grounds advanced by Petitioner do not rely on a change in the law that
occurred after his § 2255 motion was denied. Rather, they are arguments that he
could have, but did not, raise in his § 2255 motion, a point that was raised in
both of the orders dismissing his previous § 2241 petitions in this Court and by
the Sixth Circuit Court of Appeals, in Case No. 16-5545, in its October 27, 2016

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order denying Petitioner’s motion for authorization to file a second or successive
motion to vacate. (Doc. 1, pp. 11-12). For this reason, the Petition would fail on
the merits had this Court jurisdiction to consider it.
Thomas Reid DeCarlo’s Petition for habeas relief pursuant to §2241 is
hereby DISMISSED for lack of subject matter jurisdiction.
All pending motions are DENIED as moot.
IT IS SO ORDERED.
DATED: August 24, 2017

Digitally signed by
Judge David R.
Herndon
Date: 2017.08.24
11:24:34 -05'00'
United States District Judge

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