Lopez v. True

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 12/4/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARNOLDO LOPEZ,
#39861-180,
Petitioner,

Case No. 17 cv–1164 DRH

vs.
W. TRUE,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Arnoldo Lopez, who is currently incarcerated in the Federal
Correctional Institution in Marion, Illinois (“Marion”), filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241.

(Doc. 1). In the Petition, he

claims that he is “legally and actually innocent of the crime he pled to,” and
that 21 U.S.C. § 841(b)(1)(C), to which he pled guilty, is a “nonexistent crime”
based on the Supreme Court’s ruling in Burrage v. United States, 134 S.Ct.
881, 892 (2014). (Doc. 1).
The central issue in Burrage was whether a defendant may be sentenced
under the enhanced penalty provision of Section 841(b)(1)(C) (a 20–year
mandatory minimum sentence where death “results from” use of an unlawfully
distributed drug), if the use of the drug “contributes to, but is not a but-for
cause of, the victim's death.” Burrage, 134 S.Ct. at 885. The Court concluded
that “but-for” causation is required for the enhanced penalty. Id. at 892.
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The Court concludes that the Petition does not survive preliminary
review under Rule 4 and Rule 1(b) of the Rules Governing Section 2254 Cases
in the United States District Courts.

Background
On September 9, 2004, Petitioner pled guilty to distribution of heroin
resulting in death under 21 U.S.C. § 841(b)(1)(C) in United States v. Lopez,
Case No. 04-cr-209 in the Western District of Texas (“Criminal Case”). (Doc. 1,
p. 2). On April 15, 2005, Petitioner was sentenced to a term of 420 months
incarceration, along with a fee and fine, followed by 12 years supervised
release. Id. The underlying facts of the case involved Petitioner selling heroin
to an individual, who then sold or gave some of the heroin to another person,
who overdosed and died after using it.

Id.

During his plea agreement

proceedings, Petitioner waived his right to appeal with limited exception. Id.
He later appealed but was unsuccessful. (Doc. 1, p. 2).

Before Burrage,

Petitioner filed his first § 2255 motion, but it was also unsuccessful. Id.

Discussion
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
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those Rules gives this Court the authority to apply the rules to other habeas
cases.
This Court need not consider the merits of this case because Petitioner
explicitly waived his right to bring this challenge in his plea agreement in the
Criminal Case. Criminal Case, Doc. 73-2. According to the plea agreement,
Petitioner agreed to waive “the right to appeal his sentence on any ground,
other than for ineffective assistance of counsel or prosecutorial misconduct of
constitutional dimension” and agreed “not to contest his sentence or the
manner in which it was determined in any post-conviction proceeding,
including, but not limited to, a proceeding under 28 U.S.C. § 2255.” Id.
Where a guilty plea is entered knowingly and voluntarily, appeal waivers
are enforceable. Solano v. United States, 812 F.3d 573, 577 (7th Cir. 2016)
(citing United States v. Behrman, 235 F.3d 1049, 1051 (7th Cir. 2000)). “The
appeal waiver stands or falls with the plea agreement.” Id. Further, a waiver of
the right to challenge a conviction or sentence under § 2255 also bars a
petition under § 2241 because the waiver does not render the remedy under §
2255 inadequate or ineffective. Muse v. Daniels, 815 F.3d 265 (7th Cir. 2016) (§
2241 is a “form of collateral attack”). Moreover, a subsequent change in the
law does not make an appeal waiver involuntary. United States v. Vela, 740
F.3d 1150, 1151 (7th Cir. 2014).
Petitioner vaguely asserts that he pled guilty “out of fear” after he was
told that he would receive life in prison if he was ultimately convicted after

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failing to take responsibility for the decedent’s death. 1 (Doc. 1, p. 7). He does
not claim that his plea or appeal and collateral attack waivers were involuntary
or invalid in the Petition, however. In any event, a § 2241 petition is not the
appropriate vehicle for raising this argument, and in response to his § 2255
motion, when he challenged the waiver of his appeal rights, the Court
determined that the “waiver-of-appeal provision was clearly informed and
voluntary and thus is enforceable in this case.” Criminal Case, Doc. 75, p. 6.

Disposition
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is summarily DISMISSED with prejudice
for the reasons stated above. Respondent TRUE is also DISMISSED with
prejudice.
If Petitioner wishes to appeal this dismissal, he may file a notice of
appeal with this court within sixty 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. §

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Notably, this warning was not inaccurate, as the mandatory statutory term would have been life
imprisonment in such a situation, since Petitioner “committed the violation after one or more prior
convictions for a felony drug offense” and “possessed a firearm.” Criminal Case, Doc. 75.

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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 60-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).
IT IS SO ORDERED.

Judge Herndon
2017.12.04
08:31:23 -06'00'
UNITED STATES DISTRICT JUDGE

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