Jenkins v. USA

Filing 122

ORDER. For the reasons stated in the attached Memorandum and Order, Petitioner's Emergency Motion for Release Pending Habeas Review (Doc. 120 ) is DENIED. Petitioner's Renewed Motion for Transcripts (Doc. 121 ) is DENIED, without prejudice. Signed by Judge David W. Dugan on 5/26/2021. (arm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTWON DESHANE JENKINS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 18-cv-610-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
This matter comes before the court on two motions filed by Petitioner Antwon
Deshane Jenkins on May 14, 2021: Emergency Motion for Release Pending Habeas
Review (Doc. 120) and Renewed Motion for Transcripts (Doc. 121).
On September 18, 2015, in Case No. 13-cr-30125, Petitioner Antwon Deshane
Jenkins was sentenced to 27 months in prison after his conviction for possession with
intent to distribute cocaine. See United States v. Jenkins, S.D. Ill. Case No. 13-cr-30125, at
Doc. 449. This sentence is to run consecutively to his sentence in Case No. 12-cr-30239,
where he was sentenced to 293 months in prison after his conviction for kidnapping. See
United States v. Jenkins, S.D. Ill. Case No. 12-cr-30239, at Do
the instant matter was affirmed on March 13, 2017 in United States v. Jenkins, 850 F.3d 912
(7th Cir. 2017). On November 25, 2020, this Co

Section 2255 petition

related to his cocaine conviction and declined to issue a certificate of appealability (Doc.

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94). On December 8, 2020, Petitioner filed his Notice of Appeal of this denial with the
Seventh Circuit (Doc. 95). The appeal is still pending.
Emergency Motion for Release
By his Emergency Motion for Release pending Habeas Review, Petitioner asks for
his immediate release from incarceration pending the outcome of the current appeal in
this matter, and his separate Section 2255 petition in Jenkins v. United States, 20-cv-233SMY (S.D. Ill), where he challenges his 293-month sentence for his kidnapping conviction.
The briefing on this separate 2255 petition is to be completed on or about June 25, 2021.
Jenkins v. United States, 20-cv-233-SMY (S.D. Ill), at Doc. 25. Petitioner invokes 18 U.S.C.
§ 3143(b), which provides for the release or detention of defendants pending sentencing
or appeal. Petitioner emphasizes that he is not seeking compassionate release pursuant
to 18 U.S.C. § 3582(c)(1)(A)(i) (Doc. 120, p. 1).
18 U.S.C. § 3143(b)(1) is not applicable to convicted defendants seeking
postconviction relief under 28 U.S.C. § 2255. Cherek v. United States, 767 F.2d 335, 337 (7th
ity that federal district judges in habeas
corpus and section 2255 proceedings have inherent power to admit applicants to bail
Id.; see
also Kramer v. Jenkins, 800 F.2d 708, 708 (7th Cir. 1986). The Circuit cautions:
The reasons for parsimonious exercise of the power should be obvious. A
defendant whose conviction has been affirmed on appeal ... is unlikely to
have been convicted unjustly; hence the case for bail pending resolution of
his postconviction proceeding is even weaker than the case for bail pending
appeal. And the interest in the finality of criminal proceedings is poorly
served by deferring execution of sentence till long after the defendant has
been convicted.
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Cherek, 767 F.2d at 337. Although 18 U.S.C. § 3143(b) is generally inapplicable to section
2255 proceedings, the Seventh Circuit has also commented that the section 3143 standard
is more favorable to defendants, and therefore, it is clear that if a defendant cannot meet
the more lenient terms of section 3142, then bail pending the appeal of his section 2255
petition is also not available. Id. Petitioner cannot meet the more lenient terms of section
3142, and his Motion for Release will be denied.
To overcome the presumption against release pending appeal for convicted
defendants in 18 U.S.C. § 3143(b)(1) Petitioner must show:
(A) by clear and convincing evidence that the person is not likely to flee or
pose a danger to the safety or the community if released under section
3142(b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial
trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a
reduced sentence to a term of imprisonment less than the total of the time
already served plus the expected duration of the appeal process.
18 U.S.C. § 3143(B)(1); United States v. Bilanzich, 771 F.2d 292, 298 (7th Cir.1985). Once the

the Circuit uses a two-step approach:

First, the district

appeal presents a substantial question of law or fact. Second, the district court must

appellate court is more likely than not to reverse the conviction or order a new trial on all
Bilanzich, 771 F.2d at 298.
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Petitioner argues generally that he is not a danger to any specific person and does
not pose a flight risk. He also claims that his current health conditions make him
especially vulnerable to the threat of Covid-19 and the ongoing pandemic. Petitioner
submits favorable letters of recommendation from his employment managers, character
references from community members, and a list of training courses he has accomplished
while incarcerated. Petitioner further argues that he has been offered employment and
secured housing with family members should he be released.

Despite these

endorsements, Petitioner has not established exceptional circumstances necessary to
overcome his detention. As mentioned above, Petitioner was sentenced to 27 months
imprisonment for his cocaine conviction, which is to run consecutively to his 293-month
sentence in Case No. 12-cr-30239

kidnapping verdict in Case

No. 12-cr-30239 is particularly callous. Accordingly, Petiti
not pose a danger to any person is not clear and convincing evidence given his especially
violent past.
Even if the defendant could meet the hurdle that he is not likely to pose a risk of
safety to others, he would not be able to clear the second factor that his appeal presents a
substantial question of law or fact. In the instant appeal, the Court specifically rejected
the grounds raised by Jenkins on appeal and refused to issue a certificate of appealability
(Doc. 94). Accordingly, the Court does not find that there is a substantial question of law
or fact that would more likely than not reverse the conviction or order a new trial in the
instant matter. Jenkins also fails to present any arguments concerning the relief he seeks
in his separate challenge to his sentence in Case No. 12-cr-30239, and fails to meet his
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burden in presenting a substantial question of law or fact that would more likely than not
reverse his conviction or order a new trial in his separate criminal case. Accordingly,
for Release Pending Habeas Review (Doc. 120) is DENIED.
Motion for Transcripts
By his Renewed Motion for Transcripts, Petitioner asks to receive transcripts of the
evidentiary hearing held on November 17, 2020. Petitioner argues that he needs these
transcripts to assist with his preparation of his request for a certificate of appealability.
The Seventh Circuit recently granted Petitioner until June 14, 2021 to file a separate
request for a certificate of appealability (Doc. 121, p. 14). In that order, the Seventh Circuit
also advised that Petitioner may renew his request for transcripts should the Circuit issue
a certificate of appealability and set a briefing schedule (Id.).
Petitioner argues that without his transcripts he will not be able to effectively
litigate his appeal (Doc. 121, p. 1). Petitioner cites to Federal Rule of Appellate Procedure
intends to urge on appeal that finding or
conclusion is unsupported by the evidence or is contrary to the evidence, the appellant
must include in the record a transcript of all evidence relevant to the finding or

grant his request for a certificate of appealability. However, until that time, the Court
will not order the transcripts to be prepared.
In order for a certificate of appealability to be issued under 28 U.S.C. § 2253,

Court finds that Petitioner can provide sufficient factual support for his arguments at this
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junction without citations to the complete transcript from the November 17, 2020
evidentiary hearing. Just as the Seventh Circuit instructed, should a certificate of
appealability be issued, Petitioner may renew his request for the preparation of
transcripts. Until that time, however, the costs and expense of preparing the transcripts
far outweigh their potential usefulness, if any, in preparing a request for a certificate of
wed Motion for Transcripts (Doc. 121) is
DENIED, without prejudice.
SO ORDERED.
Dated: May 26, 2021

______________________________
DAVID W. DUGAN
United States District Judge

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