DURKIN v. KRUEGER

Filing 7

Entry Dismissing Action and Directing Entry of Final Judgment - Based on the foregoing, Durkin has sought relief pursuant to 28 U.S.C. § 2241 under circumstances which do not permit or justify the use of that remedy. This is apparent from the pl eadings and the history of the sentence he now challenges. Durkin's enhanced sentence is not constitutionally infirm for the reasons he asserts. His petition for writ of habeas corpus is denied. Judgment consistent with this Entry shall now issue. SEE ORDER. Copy sent to Petitioner via US Mail. Signed by Judge William T. Lawrence on 8/8/2017.(JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
THOMAS WILLIAM DURKIN,

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Petitioner,
vs.
J. F. KRUEGER WARDEN,
Respondent.

No. 2:17-cv-0065-WTL-MJD

Entry Dismissing Action and Directing Entry of Final Judgment
I.
Petitioner Thomas Durkin is confined in this District and seeks a writ of habeas corpus. The
pleadings and the expanded record show that Durkin was convicted in the United States District Court
for the Southern District of California for conspiracy to conduct enterprise affairs through a pattern of
racketeering activity in violation of 18 U.S.C. § 1962(d). United States v. Martinez, 657 F.3d 811 (9th
Cir. 2011). He is now serving a term of life imprisonment. Id. Following this direct appeal, Durkin’s
motion for relief pursuant to 28 U.S.C. § 2255 was denied. His motion to file a second or successive
28 U.S.C. § 2255(a) motion was then also denied.
The present action followed. Durkin claims that Johnson v. United States, 135 S. Ct. 2551, 2557
(2015), renders his RICO sentence invalid. This contention was made in Durkin’s second or successive
application and was rejected by the Ninth Circuit, which explained that Durkin
has not shown that the statute under which he was convicted and sentenced contains
language similar to that found to be unconstitutionally vague in Johnson v. United States,
135 S. Ct. 2551 (2015). Accordingly, the applicant has not made a prima facie showing
under 28 U.S.C. § 2255(h) . . . To the extent the applicant seeks to challenge the
application of U.S.S.G. § 2E1.1(a) under Johnson, he is not entitled to authorization. See
Beckles v. United States, 137 S. Ct. 886, 895 (2017) (holding that “the advisory
Sentencing Guidelines are not subject to a vagueness challenge under the Due Process
Clause and that § 4B1.2(a)’s residual clause is not void for vagueness”).

No. 16-72192 (9th Cir. April 17, 2017).
Durkin also argues that Apprendi v. United States, 530 U.S. 466 (2000), requires the jury to make
the determination of whether the racketeering activity warrants a life-sentence, “but the jury's special
verdict found [him] subject to th[at] sentence[ ].” United States v. Martinez, 657 F.3d 811, 816 (9th Cir.
2011). See United States v. Benabe, 654 F.3d 753, 777 (7th Cir. 2011)(“After the jury had reached its
verdicts of guilty on most charges, including the RICO conspiracy charge, the district court instructed
the jury to determine whether the defendants had been criminally involved in four of the murders included
in the indictment. Such a jury finding was necessary to comply with the requirements of Apprendi . . .”);
United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001)(“Apprendi only applies when the disputed ‘fact’
enlarges the applicable statutory maximum and the defendant's sentence exceeds the original
maximum”).
Durkin invokes the Savings Clause of 28 U.S.C. § 2255(e), which permits a habeas challenge to
the legality of an inmate’s conviction or sentence in those cases where 28 U.S.C. § 2255 is “‘inadequate
or ineffective to test the legality of [the] detention.’” Kramer v. Olson, 47 F .3d 214, 217 (7th Cir. 2003)
(quoting 28 U.S.C. § 2255(e)). Whether § 2255 is inadequate or ineffective depends on “whether it allows
the petitioner ‘a reasonable opportunity to obtain a reliable judicial determination of the fundamental
legality of his conviction and sentence.’” Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (en
banc) (quoting Davenport, 147 F.3d at 609).
Durkin’s constitutional claims could have been raised—and in fact were raised, at least in part—
in his prior challenges. Accordingly, § 2255 was adequate to test the legality of his detention, and he may
not press these claims in a § 2241 petition. “The essential point is that a prisoner is entitled to one
unencumbered opportunity to receive a decision on the merits.” Potts v. United States, 210 F.3d 770 (7th
Cir. 2000). Durkin had that opportunity and used it. He is not entitled to more.

Based on the foregoing, Durkin has sought relief pursuant to 28 U.S.C. § 2241 under
circumstances which do not permit or justify the use of that remedy. This is apparent from the pleadings
and the history of the sentence he now challenges. Durkin’s enhanced sentence is not constitutionally
infirm for the reasons he asserts. His petition for writ of habeas corpus is denied.
II.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

Date: 8/8/2017
Distribution:

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

THOMAS WILLIAM DURKIN
31577-198
TERRE HAUTE - FCI
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
[e-mail]