CRAWFORD v. KRUEGER
Filing
25
Order Denying Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, Denying Motion to Transfer Case to Different Venue, and Directing Entry Of Final Judgment - Carl Dwayne Crawford seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 . Mr. Crawford's "motion to transfer case to different venue," dkt. 24 , is denied. Because this case has been briefed and ripe for resolution since August 2018, and the Court had substantially prepared a ruling prior to Mr. Crawfo rd's motion, the Court finds that, in the interest of justice and judicial economy, change in venue is not warranted. The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied. The dismissal of this action is with prejudice. Judgment consistent with this Order shall now issue. (See Order.) Copy to Petitioner via U.S. Mail. Signed by Judge Jane Magnus-Stinson on 11/16/2018. (DMW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CARL DWAYNE CRAWFORD,
Petitioner,
v.
J. E. KRUEGER,
Respondent.
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No. 2:17-cv-00518-JMS-MJD
Order Denying Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241,
Denying Motion to Transfer Case to Different Venue, and
Directing Entry Of Final Judgment
Carl Dwayne Crawford seeks a writ of habeas corpus pursuant to 28 U.S.C. § 22411. For
the reasons discussed in this Order, his petition for writ of habeas corpus is denied.
I.
Background
On July 10, 2003, Mr. Crawford was charged in the Eastern District of Pennsylvania in a
Third Superseding Indictment with conspiracy to commit armed bank robbery, in violation of 18
U.S.C. § 371 (count 1); aiding and abetting armed bank robbery, in violation of 18 U.S.C. §§ 2
and 2113(d) (count 2); using and carrying a firearm during a crime of violence, in violation of 18
U.S.C. §§ 2 and 924(c); being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (count 5); and possession with intent to distribute in excess of 50 grams of cocaine
base (“crack”), in violation of 21 U.S.C. § 841 (count 7). United States v. Faulkner et al., No. 2:03cr-00105-FLW-2 (E.D. Pa.) (hereinafter “Crim. Dkt.”), Dkt. 70. Prior to trial, the United States
filed a notice of sentence enhancement, pursuant to 21 U.S.C. § 851(a), stating its intention to seek
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At the time Mr. Crawford filed his § 2241 petition, he was incarcerated in the U.S. Penitentiary
in Terre Haute, Indiana.
an enhanced sentence under 21 U.S.C. § 841(b) based on Mr. Crawford’s prior conviction in 1993
for knowingly possessing a controlled substance and manufacture, delivery or possession with
intent to manufacture or deliver a controlled substance in the Philadelphia Court of Common Pleas,
Case No. CP#9308-3874. Crim. Dkt. 94. After a multi-day jury trial, Mr. Crawford was convicted
of counts 5 and 7. Crim. Dkt. 150. 2
In preparation for sentencing, the United States Probation Office prepared a presentence
report (PSR). Dkt. 15. The PSR calculated a base offense level of 32, based on the quantity of
drugs – 68.1 grams of cocaine base– under U.S.S.G. § 2D1.1(c)(4). Id. at 7. The base offense
level was increased by two levels because Mr. Crawford possessed a firearm, yielding a total
adjusted offense level of 34. Id. The PSR calculated a total of 9 criminal history points, which
yielded a Criminal History Category IV. Id. at 12. This resulted in a sentencing range of 210 to
262 months’ imprisonment. Id. at 15. However, because of Mr. Crawford’s prior felony drug
conviction, a statutory mandatory minimum term of 240 months’ imprisonment was required as to
count 7, pursuant to 21 U.S.C. § 841(b)(1)(A), so the guideline sentencing range was 240 to 262
months’ imprisonment. Id.
On November 2, 2004, Mr. Crawford was sentenced to imprisonment of 63 months on
count 5 and imprisonment of 240 months on count 7. Crim. Dkt. 234. Judgment was entered on
November 5, 2004. Crim. Dkt. 238. Mr. Crawford appealed his conviction and sentence. The
Third Circuit affirmed his conviction but vacated his sentence and remanded for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005). United States v. Crawford, No.
04-4249 (3rd Cir. 2004); Crim. Dkt. 261.
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Mr. Crawford was found not guilty of counts 1-3 in a separate jury trial. Crim. Dkt. 126.
2
On May 19, 2006, Mr. Crawford was resentenced to the same terms of imprisonment: 63
months on count 5 and 240 months on count 7. Crim. Dkt. 270. Mr. Crawford appealed his
sentence, which was affirmed by the Third Circuit. See United States v. Crawford, 274 Fed. App’x
151 (3d Cir. 2008).
On June 5, 2006, Mr. Crawford filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. Crim. Dkt. 275. Mr. Crawford later withdrew his petition. Crim.
Dkt. 291.
On January 20, 2009, Mr. Crawford filed another § 2255 motion arguing that there was
prosecutorial misconduct, jury selection was improper, and that he received inadequate assistance
of counsel. Crim. Dkt. 295. His motion was denied. Crim. Dkts. 310, 311.
Mr. Crawford’s petition to the Third Circuit for authorization to file a second or successive
§ 2255 motion was denied on four occasions in May 2014, May 2015, August 2015, and April
2017. Crim. Dkts. 353, 365, 370, 393.
Mr. Crawford now challenges his conviction and sentence in this Court pursuant to 28
U.S.C. § 2241.
II.
Section 2241 Standard
To proceed under § 2241 after having filed a motion pursuant to 28 U.S.C. § 2255,
the § 2255 motion must have been “inadequate or ineffective to test the legality of [the petitioner’s]
detention.” 28 U.S.C. § 2255(e). Section 2255 is inadequate or ineffective if the following three
requirements are met: “(1) the petitioner must rely on a case of statutory interpretation (because
invoking such a case cannot secure authorization for a second § 2255 motion); (2) the new rule
must be previously unavailable and apply retroactively; and (3) the error asserted must be grave
enough to be deemed a miscarriage of justice, such as the conviction of an innocent defendant.”
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Davis v. Cross, 863 F.3d 962, 964 (7th Cir. 2017) (citing Montana v. Cross, 829 F.3d 775, 783
(7th Cir. 2016); In re Davenport, 147 F.3d 605, 610-11 (7th Cir. 1998)). 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 In re
Davenport, 147 F.3d 605, 609 (7th Cir. 1998)). To properly invoke the Savings Clause of 28
U.S.C. § 2255(e), a petitioner is required to show “something more than a lack of success with a
section 2255 motion,” i.e., “some kind of structural problem with section 2255.” Id. “The
petitioner bears the burden of coming forward with evidence affirmatively showing the inadequacy
or ineffectiveness of the § 2255 remedy.” Smith v. Warden, FCC Coleman – Low, 503 Fed. Appx.
763, 765 (11th Cir. 2013) (citation omitted).
III.
Discussion
Mr. Crawford argues that his prior Pennsylvania felony drug conviction should not have
been used to impose an enhanced sentence pursuant to 21 U.S.C. 841 given the Supreme Court’s
decision in Mathis v. United States, 136 S. Ct. 2243 (2016). See dkt. 1. Section 841(b)(1)(A)
requires, when enhancing a sentence for prior convictions, that the prior conviction be for a “felony
drug offense.” The term “felony drug offense” in 21 U.S.C. 841(b)(1) is defined exclusively by §
802(44), Burgess v. United States, 553 U.S. 124, 130 (2008), and is defined as a prior state or
federal offense (1) punishable by more than one year in prison, and (2) that “prohibits or restricts
conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.” 21 U.S.C. § 802(44). The Seventh Circuit has explained that a court uses the
categorical approach of Taylor v. United States, 495 U.S. 575 (1990), and Mathis v. United States,
136 S. Ct. 2243 (2016), to analyze whether prior drug convictions qualify as a “felony drug
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offense” under § 802(44). See United States v. Elder, 900 F.3d 491 (7th Cir. 2018). Mr. Crawford
asserts that Mathis applies to his sentence enhancements under 21 U.S.C. § 841 because his prior
drug convictions in Pennsylvania court was based on a statute that is broader than those governing
federal drug felony offenses. Dkt. 1 at 2. 3 In response, the respondent argues that Mr. Crawford
is not entitled to relief because he cannot satisfy the third savings clause requirement and show
miscarriage of justice. Dkt. 14. 4
Each of the three requirements to invoke the savings clause of § 2255(e) is discussed below.
A.
Statutory-Interpretation Case
The Government does not dispute that Mr. Crawford meets the first savings clause
requirement. Dkt. No. 14 at 6. This is because Mr. Crawford challenges his sentence under
3
In his supplemented petition, Mr. Crawford also argues that the prosecution failed to prove that
he pleaded guilty in his 1993 Pennsylvania conviction, and therefore that prior drug conviction
should not have been used to impose an enhanced sentence. Dkt. 16.
Mr. Crawford has raised this claim on prior occasions, including in his appeal. Crawford, 274
Fed. Appx. at 151 n.1 (“In convicting Crawford of violating § 922(g)(1), the jury found beyond a
reasonable doubt that he committed the 1993 felony upon which the District Court relied in
sentencing Crawford.”). Mr. Crawford lost those challenges and has not shown a good reason to
reexamine the Third Circuit’s holding in the limited context . See Fuller v. United States, 398 F.3d
644, 648 (7th Cir. 2005) (“the law of the case doctrine dictates that once this court has decided the
merits of a ground of appeal, that decision establishes the law of the case and is binding on a [court]
asked to decide the same issue in a later phase of the same case, unless there is some good reason
for reexamining it.”) (internal citations and quotations omitted).
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The respondent’s return to the order to show cause focuses almost entirely on the Seventh
Circuit’s holding in United States v. Redden, 875 F.3d 374 (7th Cir. 2017). In Redden, the Seventh
Circuit held that a prior conviction for delivery of a controlled substance in violation of 720 ILCS
570/401 could be classified as a “controlled substance offense” for the purposes of United States
Sentencing Guidelines § 4B1.1 to treat an individual as a “career offender.” Id. at 374-75.
But, Redden is inapposite. First, Mr. Crawford was not sentenced as a career offender, but was
instead subjected to an enhanced sentence under 21 U.S.C. § 841. Second, the relevant definition,
in Redden, of a “controlled substance offense” for the purposes of § 4B1.1 (career offender) is not
synonymous with the definition of a “felony drug offense” under 21 U.S.C. § 841.
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Mathis, which is a case of statutory interpretation. Dawkins v. United States, 829 F.3d 549, 551
(7th Cir. 2016) (Mathis “is a case of statutory interpretation”); United States v. Bess, 655 Fed.
Appx. 518 (8th Cir. 2016) (recognizing that Mathis inquiry was “whether the statutory alternatives
were means or elements”). The Court finds that Mr. Crawford meets the first savings clause
requirement.
B.
Retroactivity
Next, the Government does not strongly dispute that Mr. Crawford meets the second
savings clause requirement. Dkt. 14 at 6 (“At best, while Crawford may meet the first two
Davenport factors to show a structural problem, but he cannot show the third.”). The Seventh
Circuit has stated that “substantive decisions such as Mathis presumptively apply retroactively on
collateral review.” Holt v. United States, 843 F.3d 720, 721-22 (7th Cir. 2016) (internal citations
omitted). Thus, the second savings clause requirement is not a barrier to further review.
C.
Miscarriage of Justice
The parties disagree regarding the third savings clause requirement, whether there has been
a miscarriage of justice. The Seventh Circuit has used a variety of formulations to describe the
type of error that may meet this demanding standard, including a “fundamental error equivalent to
actual innocence,” Brown v. Rios, 696 F.3d 638, 641 (7th Cir. 2012) (quoting Taylor v. Gilkey,
314 F.3d 832, 836 (7th Cir. 2002)); an error which reaches the “fundamental legality of [a
prisoner’s] sentence[],” In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998); or an error which
results in a sentence “based upon the equivalent of a nonexistent offense,” Narvaez v. United
States, 674 F.3d 621, 629 (7th Cir. 2011). The Court concludes that Mr. Crawford’s challenge
hinges on whether his sentence under the Sentencing Guidelines is a miscarriage of justice.
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Several Seventh Circuit cases help define the contours of the “miscarriage of justice”
standard as applied to Mr. Crawford’s case. First, in the context of an initial habeas petition under
§ 2255, the court held that a petitioner who had been improperly designated a career offender under
the then-mandatory Sentencing Guidelines could obtain relief because, as a result of his improper
designation, his sentence extended “beyond that authorized by the sentencing scheme” and thus
undermined the “fundamental legality of his sentence.” Narvaez, 674 F.3d at 630. In Brown v.
Caraway, 719 F.3d 583, 588 (7th Cir. 2013), the Seventh Circuit extended Narvaez to § 2241
petitions, again based upon the mandatory nature of the Guidelines before United States v. Booker,
543 U.S. 220 (2005).
In Hawkins v. United States, 706 F.3d 820, supplemented on denial of rehearing, 724 F.3d
915 (7th Cir. 2013), however, the Seventh Circuit distinguished cases where the petitioner had
been sentenced under the mandatory Guidelines, as in Narvaez and Brown v. Caraway, from cases
where the petitioner is sentenced under the “merely advisory” post-Booker Guideline regime:
Postconviction review is therefore proper when for example the judge imposes a
sentence that he had no authority to impose, as in Navarez, since the consequence
for the defendant in such a case is ‘actual prejudice’—an ‘injurious effect’ on the
judgment. But it does not follow that postconviction relief is proper just because
the judge, though he could lawfully have imposed the sentence that he did impose,
might have imposed a lighter sentence had he calculated the applicable guidelines
sentencing range correctly.
724 F.3d at 917. Because of this, the Seventh Circuit held that “a sentence that is well below the
ceiling imposed by Congress whether directly or by delegation to the Sentencing Commission”
could not “be considered a ‘miscarriage of justice’ that can be collaterally attacked, just because
the judge committed a mistake en route to imposing it.” 706 F.3d at 824-25. To the contrary,
“[a]n error in the interpretation of a merely advisory guideline … is not a proper basis for voiding
[on postconviction review] a punishment lawful when imposed.” Id. at 824.
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Furthermore, the Seventh Circuit has rejected collateral attacks on sentences under the
advisory Guideline regime where the sentencing judge recognized that the Guidelines were
advisory and “determin[ed] that the sentence was appropriate.” United States v. Coleman, 763
F.3d 706, 709 (7th Cir. 2014). An error in the advisory Guideline calculation remains insufficient
for habeas relief even where the petition can show that the application of the enhancement likely
resulted in a greater sentence than the petitioner would have received without the enhancement.
Id. at 708-10. “[E]ven errors that are not harmless may not be cognizable” in a postconviction
proceeding, and “the likelihood of a different sentence in light of the sentencing error is not an
adequate basis” for demonstrating a miscarriage of justice. Id. at 710.
Although Mr. Crawford was sentenced in 2004, before the Supreme Court’s 2005 ruling in
Booker which rendered the Sentencing Guidelines advisory, the Third Circuit vacated and
remanded his case for re-sentencing in accordance with Booker. He was thereafter sentenced under
the advisory Guideline regime where the sentencing judge recognized that the Guidelines were
advisory. Mr. Crawford’s sentence of 240 months was well below the statutory maximum of life
imprisonment. Additionally, his sentence fell within the guideline ranges of 210 to 262 months’
imprisonment (if his sentence was not enhanced under § 841) and of 240 to 262 months’
imprisonment (with the § 841 enhancement). Id. Under binding Seventh Circuit precedent, the
fact that Mr. Crawford may have received a shorter sentence without the statutory enhancement
under 18 U.S.C. § 841 is insufficient to show a miscarriage of justice. As a result, Mr. Crawford
cannot demonstrate a miscarriage of justice supporting relief under his § 2241 petition. Rose vs.
Hodges, 423 U.S. 19, 21 (1975) (“A necessary predicate for the granting of federal habeas relief
[to a petitioner] is a determination by the federal court that [his or her] custody violates the
Constitution, laws, or treaties of the United States.”).
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IV.
Motion to Transfer Case to Different Venue
Mr. Crawford’s “motion to transfer case to different venue,” dkt. [24], is denied. Under
28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it might have been
brought or to any district or division to which all parties have consented.” Because this case has
been briefed and ripe for resolution since August 2018, and the Court had substantially prepared a
ruling prior to Mr. Crawford’s motion, the Court finds that, in the interest of justice and judicial
economy, change in venue is not warranted.
V.
Conclusion
The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied. The
dismissal of this action is with prejudice. Prevatte v. Merlak, 865 F.3d 894, 901 (7th Cir. 2017)
(“petition should be dismissed with prejudice under 28 U.S.C. § 2255(e)”).
Judgment consistent with this Order shall now issue.
IT IS SO ORDERED.
Date: 11/16/2018
Distribution:
CARL DWAYNE CRAWFORD
57110-066
PETERSBURG - MEDIUM FCI
PETERSBURG MEDIUM FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1000
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