HOWARD v. OLIVER

Filing 7

Corrected Entry and Order Dismissing Action - "Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." This is an appropriate case for such a disposition. Howard's habeas petition shows on its face that he is not entitled to the relief he seeks. Judgment consistent with this Entry shall now issue. Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 11/5/2013.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

ANTHONY HOWARD,
Petitioner,
v.
JOHN OLIVER, Warden,
Respondent.

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No. 2:13-cv-376-JMS-WGH

Corrected Entry and Order Dismissing Action
I.
AFederal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.@ McFarland v. Scott, 512 U.S. 849, 856 (1994). This is an
appropriate case for such a disposition. This conclusion is compelled by the following facts and
circumstances:
1.

Anthony Howard pleaded guilty to conspiracy to possess heroin and cocaine base

with the intent to distribute. The district court sentenced him to 227 months' imprisonment.
United States v. Howard, 454 F.3d 700, 704 (7th Cir. 2006).
2.

At sentencing, Howard was held accountable for the overdose death of heroin

user Edwin Tallard. A challenge to the finding as part of the basis for his sentencing was rejected
by the Court of Appeals. Id. Howard is confined in this District serving the executed portion of
the sentence imposed for his offense.
3.

Howard now seeks habeas corpus relief pursuant to 28 U.S.C. ' 2241(c)(3) based

on his contention that because of the recent decision in Alleyne v. United States, 133 S. Ct. 2151
(2013), his sentencing “enhancement” is improper.

4.

Alleyne overruled Harris v. United States, 536 U.S. 545 (2002), and found that the

Sixth Amendment rights recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000), also apply
to facts triggering a mandatory minimum sentence. This avails Howard nothing, however,
because the Seventh Circuit has already determined that Alleyne does not apply retroactively to
cases on collateral review. Simpson v. United States, 721 F.3d 875 (7th Cir. 2013). Moreover,
the guideline calculation determined by the district court in no way implicated a statutory
mandatory minimum sentence.
5.

Howard’s habeas petition shows on its face that he is not entitled to the relief he

seeks.
II.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

11/05/2013
Date: __________________
_______________________________

Distribution:

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

ANTHONY HOWARD
#05830-090
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808