VANVALKENBURG v. WATSON

Filing 4

Order Denying Petition for Writ of Habeas Corpus and Directing Petitioner to Show Cause - Mr. Vanvalkenburg's petition for a writ of habeas corpus must be denied. Mr. Vanvalkenburg shall have through February 5, 2021, to show cause why this action should not be dismissed for the reasons explained above. Copy to Petitioner via US Mail. Signed by Judge James R. Sweeney II on 1/8/2021.(KAA)

Case 2:20-cv-00695-JRS-MJD Document 4 Filed 01/08/21 Page 1 of 4 PageID #: 25

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
RAYMOND A. VANVALKENBURG,
Petitioner,
v.
T.J. WATSON,
Respondent.

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No. 2:20-cv-00695-JRS-MJD

Order Denying Petition for Writ of Habeas Corpus
and Directing Petitioner to Show Cause
Raymond Vanvalkenburg, an inmate at the Federal Correctional Institution in Terre Haute,
Indiana, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons,
the Court finds that the petition must be denied, and the petitioner is ordered to show cause why
the petition should not be dismissed.
I. Factual and Procedural Background
On January 21, 2015, Mr. Vanvalkenburg was charged in a three-count indictment with
possessing with intent to distribute 5 grams or more of methamphetamine in violation of 21 U.S.C.
§§ 841 and 841(b)(1) (Count 1), using a firearm during and in relation to a drug trafficking crime
in violation of 18 U.S.C. § 924(c)(1)(a) (Count 2), and being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 3). United States v. Vanvalkenburg, 8:15cr-00023-JFB-TDT-1 (D. Neb.) ("Cr. Dkt.") dkt. 1. Mr. Vanvalkenburg pleaded guilty to Counts
1 and 2 of the indictment. Cr. Dkt. 21. On October 16, 2015, the district court accepted his plea
and sentenced him to 133 months imprisonment. Cr. Dkt. 25. Pursuant to the plea agreement,
Count 3 was dismissed. Cr. Dkt. 21, 25.

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Mr. Vanvalkenburg did not appeal, but on August 21, 2020, he filed a motion for relief
pursuant to 28 U.S.C. § 2255 challenging his conviction and sentence under United States v. Davis,
139 S. Ct. 2319, 2323 (2019) and Mathis v. United States, 136 S. Ct. 2243, 2253 (2016). Cr. Dkt.
32. The district court denied Mr. Vanvalkenburg's petition, concluding that Davis and Mathis are
inapplicable to his claims. Id.
II. Discussion
In his petition for a writ of habeas corpus, Mr. Vanvalkenburg challenges his conviction
arguing that his convictions are invalid under Mathis and Rehaif v. United States, 139 S. Ct. 2191
(2019).
Mr. Vanvalkenburg's habeas petition under 28 U.S.C. § 2241 is subject to preliminary
review to determine whether "it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court." Rule 4 of the Rules
Governing § 2254 Cases (applicable to § 2241 petitions pursuant to Rule 1(b)); see 28 U.S.C.
§ 2243. If so, the petition must be summarily dismissed. Rule 4.
To proceed under § 2241, a motion pursuant to 28 U.S.C. § 2255 must be "inadequate or
ineffective to test the legality of his 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." Davis v. Cross, 863 F.3d 962, 964 (7th Cir. 2017).
Based on Mr. Vanvalkenburg's petition and a review of the docket in his underlying
criminal case, the Court concludes that Mr. Vanvalkenburg is not entitled to relief under § 2241.

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First, Mr. Vanvalkenburg argues that his conviction for using a firearm during and in
relation to a drug trafficking crime is invalid in light of Mathis. He contends that he is entitled to
pursue his Mathis claim in this § 2241 petition because he was time-barred from bringing his
Mathis challenge when he filed his § 2255. Mathis was decided in 2016 and he did not file his
§ 2255 motion until 2020. But he was not barred from bringing a timely § 2255 motion based on
Mathis. First, 28 U.S.C. § 2255(f) provides that its one-year statute of limitations may run from
"the date on which the right asserted was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review." Thus, if Mathis is retroactive, Mr. Vanvalkenburg could have brought a timely
§ 2255 motion based on Mathis if he had filed it within one year of the Mathis decision. The fact
that he did not file his § 2255 motion until August of 2020 does not make § 2255 ineffective or
inadequate. Moreover, Mr. Vanvalkenburg did in fact raise a Mathis claim in his § 2255 and the
district court considered it on the merits. Cr. Dkt. 33. His lack of success on that motion does not
make § 2255 inadequate or ineffective.
Next, Mr. Vanvalkenburg relies on Rehaif v. United States, 139 S. Ct. 2191 (2019), to
challenge Count 3 of the indictment. The Supreme Court held in Rehaif that, to be convicted of
being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), a person must know that he
or she belongs to a group covered under the statute barring possession of firearms. But the record
shows that Count 3, which charged Mr. Vanvalkenburg with being a felon in possession of a
firearm, was dismissed as part of his plea agreement. Cr. Dkt. 21, 25. Rehaif therefore has no
applicability to his convictions.

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III. Conclusion
For the foregoing reasons, Mr. Vanvalkenburg's petition for a writ of habeas corpus must
be denied. Mr. Vanvalkenburg shall have through February 5, 2021, to show cause why this
action should not be dismissed for the reasons explained above.
IT IS SO ORDERED.

Date: 1/8/2021

Distribution:
RAYMOND A. VANVALKENBURG
27163-047
TERRE HAUTE - FCI
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808