Never Misses a Shot v. U.S. District Court

Filing 7

MEMORANDUM AND ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 9/29/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LENFORD NEVER MISSES A SHOT,
No. 12582-073,
Petitioner,
vs.

Case No. 17-cv-822-DRH

U.S. DISTRICT COURT (Pierre, S.D.),
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the USP-Marion, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of
his confinement.
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.

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Background
Petitioner pleaded guilty to a charge of sexual abuse in the District of South
Dakota in 2004. United States v. Never Misses a Shot, Case No. 03-cr-30063-CBK
(D.S.D.). On May 14, 2004, he was sentenced to 210 months in prison, to be
served consecutively to a 10-month sentence for escape in Case No. 04-cr-3002601 (D.S.D.).

(Doc. 39 in Case No. 03-cr-30063).

He was convicted of sexual

abuse under 18 U.S.C. § 2242(2). Federal jurisdiction was established pursuant
to 18 U.S.C. § 1153, the Indian Major Crimes Act. (Case No. 03-cr-30063).
Petitioner has made several attempts to challenge his conviction and
sentence, but has obtained no relief. In his initial motion to vacate, set aside, or
correct the sentence under 28 U.S.C. § 2255 (Case No. 04-cv-3024, D.S.D.), he
relied on Blakeley v. Washington, 542 U.S. 296 (2004) (state trial court violated
Sixth Amendment right to trial by jury when it imposed a sentence longer than the
statutory maximum based on a judicial finding that defendant acted with
deliberate cruelty). The § 2255 motion was denied because Blakely had not been
found to be retroactively applicable on collateral review. Never Misses a Shot v.

United States, Case No. 16-cv-3011 (D.S.D. March 11, 2016, Doc. 5).
In 2006, Petitioner filed a second § 2255 motion (Case No. 06-cv-3019,
D.S.D.), raising claims that his attorney was ineffective, and that he was not
competent to enter a guilty plea. That motion was denied because Petitioner had
not obtained authorization from the United States Court of Appeals for the Eighth

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Circuit to bring the successive action. Never Misses a Shot v. United States, Case
No. 16-cv-3011 (D.S.D. March 11, 2016, Doc. 5).
On June 17, 2014, he sought permission from the Eighth Circuit to file a
successive §2255 motion. That petition was denied on April 1, 2015. Id.
On February 29, 2016, he filed a third § 2255 motion, raising four issues:
(1) His conviction should be vacated based on United States v. Bruguier, 735 F.3d
754, 760-61 (8th Cir. 2013), which held that in order to obtain a sexual abuse
conviction under 18 U.S.C. § 2242, the jury must find that the defendant “knew
the victim was incapable of appraising the nature of the conduct or was physically
incapable of declining participation in or communicating unwillingness to engage
in a sexual act,” Never Misses a Shot v. United States, Case No. 16-cv-3011
(D.S.D. March 11, 2016, Doc. 5, pp. 1-2); (2) Petitioner’s indictment was
insufficient, because he was charged as Lenford Never Misses a Shot, but his real
name is Linford Louis Walking Crow; (3) He is not in fact an Indian as required
for jurisdiction under 18 U.S.C. § 1153; and (4) The application of a 4-level
enhancement for abducting the victim constitutes double jeopardy, because the
kidnapping charge against him was dismissed. Never Misses a Shot v. United

States, Case No. 16-cv-3011 (D.S.D. March 11, 2016, Doc. 5, pp. 1-2).
After noting that Petitioner had failed to obtain permission to file the
successive § 2255 motion, the trial court evaluated the merits of his claims and
concluded that he would not be entitled to relief. Bruguier did not apply because
Petitioner pled guilty and did not have a jury trial. Petitioner had signed a factual

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basis statement affirming that he is an Indian, signed his name as Lenford Never
Misses a Shot, and testified under oath that the factual basis was true and his
name was Lenford Never Misses a Shot. He testified at sentencing that he knew
the victim was intoxicated, but had sex with her anyway. The court found the
sentencing enhancement argument to be frivolous. Never Misses a Shot v. United

States, Case No. 16-cv-3011 (D.S.D. March 11, 2016, Doc. 5, p. 2).
Petitioner’s fourth § 2255 motion, filed on June 30, 2016, challenged his
sentence under Johnson v. United States, 135 S. Ct. 2551 (2015). Never Misses a

Shot v. United States, Case No. 16-cv-3029 (D.S.D.). The trial court dismissed
that motion, finding that Petitioner was not sentenced pursuant to the residual
clause of the Armed Career Criminal Act which Johnson held to be
unconstitutionally vague, thus no relief was available to him under Johnson.

Never Misses a Shot v. United States, Case No. 16-cv-3029 (D.S.D. Sept. 30,
2016, Doc. 5, p. 3).
The Petition
The instant § 2241 Petition was filed on August 2, 2017.

(Doc. 1).

Petitioner raises several grounds for relief: (1) Petitioner’s 4-level enhancement
for having abducted the victim was improper because the victim got back into his
car voluntarily after having jumped out of it, and because the charge for abducting
and kidnapping was dropped; (2) Trial counsel was ineffective for failing to object
to the sentence enhancement and for failing to advise Petitioner that he would face
an enhanced sentence; (3) After Petitioner signed the plea agreement, the

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prosecutor added 6 more enhancement points to his charge, thus increasing the
sentence by 89 more months; (4) Another 2-point enhancement for having the
victim under Petitioner’s control was unsupported by the facts, because the victim
was free to leave when she exited his car, but then chose to get back into his
vehicle; (5) The victim was never determined to be an Indian, therefore charges
should not have been pursued against Petitioner. (Doc. 1, pp. 7-10). Petitioner
asserts that if the 4-point enhancement for abduction and the 2-point
enhancement for controlling the victim were removed, his guideline range would
be reduced to 121-151 months, which he has already served. (Doc. 1, p. 9).
Petitioner seeks to have his sentence vacated or reduced (Doc. 1, p. 10). As
further relief, he apparently wants to be sent to tribal court for an arraignment,
preliminary hearing, and an extradition hearing; he wants his name “fixed”
because the “Federal Bureau” does not have jurisdiction over him under his birth
name; he seeks monetary compensation for his imprisonment and for
“kidnapping” him; and he wants his criminal record expunged. (Doc. 1, p. 11).
Petitioner attaches several documents, including a letter from United States
District Judge Kornmann (D.S.D.) responding to Petitioner’s claims that there
was no proof during his case that he is an Indian and that his name is not Lenford
Never Misses a Shot. (Doc. 1, p. 12). Petitioner added a note on this letter that
there is no birth certificate under this name. He also attaches a birth certificate,
amended on January 23, 2015, with the name Linford Louis Walking Crow. (Doc.
1, p. 13). He includes excerpts from court transcripts regarding the sentencing

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enhancements. (Doc. 1, pp. 15-16). Finally, he attaches an article discussing

United States v. Zepeda, 792 F.3d 1103 (9th Cir. 2015), which modified the test
for determining who is an “Indian” under the Indian Major Crimes Act, 18 U.S.C.
§ 1153. (Doc. 1, pp. 17-18).
Discussion
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
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). Here, Petitioner is attacking
his conviction and sentence, which points to § 2255 as the proper avenue for
relief.
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,

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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
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).
Here, the Petition does not state a claim for relief that fits within the savings
clause of § 2255(e).

Petitioner’s assertion that his trial counsel rendered

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ineffective assistance is a matter that could have been raised in his initial § 2255
motion, therefore § 2255 is not “inadequate or ineffective” to address that claim.
The same is true for Petitioner’s arguments about his sentence enhancements and
his claim that he was indicted/charged using the wrong name – there was no
impediment to raising those matters in the first § 2255. Therefore, he cannot
bring these claims in a § 2241 case using the savings clause.
As for Petitioner’s claim that the victim was never determined to be an
Indian, the Court fails to see the relevance of this argument, even if this is true.
The conduct to which Petitioner pled guilty was a crime, regardless of the
nationality or race of the victim. This claim lacks merit and again, could have
been raised in the first instance when Petitioner sought relief under § 2255.
The Zepeda case addresses the issue of federal court jurisdiction under 18
U.S.C. § 1153 based on the classification of the criminal defendant as an Indian
or non-Indian. This has nothing to do with the status of the victim. United States

v. Zepeda, 792 F.3d 1103 (9th Cir. 2015).

The Ninth Circuit in that case

overruled one part of the 2-part test used to determine who qualifies as an
“Indian” under § 1153.

Previously, the requirement that a person must have

“Indian blood” meant that the person’s lineage must be traceable to a federally
recognized tribe. See United States v. Maggi, 598 F.3d 1073 (9th Cir. 2010). The

Zepeda court held that the “Indian blood” requirement would be met by proof that
the defendant has “some quantum of Indian blood, whether or not traceable to a
federally recognized tribe.” Zepeda, 792 F.3d at 1113. The second factor, which

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requires that the defendant be a member of or affiliated with a federally
recognized tribe, remained unchanged.
In Petitioner’s case, the record shows that he signed a factual basis
statement acknowledging that he is an Indian. (Doc. 5, p. 2, in Case No. 16-cv3011 (D.S.D.)). The letter from Petitioner’s trial judge further elaborates that the
factual basis statement signed by Petitioner stated that he is “7/8 degree of Indian
by blood and [is] an enrolled member of the Rosebud Sioux Tribe,” and that
Petitioner did not object to the presentence report statement that he is an
American Indian. (Doc. 1, p. 12). Petitioner could not have presented the Zepeda
opinion in his first § 2255 motion, since it was not issued until 2015, and Zepeda
is a statutory interpretation case. These factors partially satisfy the requirements
outlined above for bringing a savings clause claim. However, even if the Zepeda
opinion were retroactively applicable (a question which need not be addressed
here), it would not change the outcome in Petitioner’s case. The facts presented in
the Petition indicate that Petitioner had “some quantum of Indian blood,” thus
federal jurisdiction over his criminal case was proper under18 U.S.C. § 1153 as
interpreted in Zepeda.

The Zepeda case does not illustrate any “fundamental

defect” in Petitioner’s conviction or sentence that is grave enough to be deemed a
miscarriage of justice, and does not support a claim for relief that may be brought
under the savings clause in a § 2241 petition.
All of Petitioner’s other arguments raised in this action could have been
brought when he initially sought relief under § 2255.

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Thus, the Petition does

not demonstrate that the § 2255 procedure was inadequate or ineffective to
address his claims, and for this reason, he cannot bring these claims under the
umbrella of a § 2241 habeas proceeding.
Petitioner should note that even if one or more of his claims had merit,
monetary relief is not available in a habeas corpus action.

See Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973) (release from custody may only be sought in
a habeas case); Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991).
Compensatory and/or punitive damages may be awarded in a successful civil
rights action brought under 42 U.S.C. § 1983, or in an action based on Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
the § 1983 equivalent for federal prisoners.
382, 386 (7th Cir. 2005).

See Glaus v. Anderson, 408 F.3d

However, an award of money damages for what

Petitioner characterizes as his “illegal imprisonment” is barred by the rule
explained in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), so long as the
sentence or conviction is still in force.
Disposition
To summarize, Petitioner has not demonstrated that § 2255 is an
inadequate remedy for his current claims, and consistent with In re Davenport,
Petitioner cannot raise these claims through a § 2241 petition. Davenport, 147
F.3d 605 (7th Cir. 1998). Accordingly, the Petition is summarily DISMISSED
with prejudice.

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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)
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.

Digitally signed by
Judge David R. Herndon
Date: 2017.09.29
12:40:49 -05'00'

IT IS SO ORDERED.

United States District Judge

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