Spradley v. English

Filing 4

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed without prejudice for lack of jurisdiction. Signed by District Judge John W. Lungstrum on 11/28/17. Mailed to pro se party Anthony D. Spradley by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY D. SPRADLEY,
Petitioner,
v.

CASE NO. 17-3201-JWL

N.C. ENGLISH, Warden,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C. §
2241. Petitioner, a prisoner in federal custody, proceeds pro se1.
Background
Petitioner, along with several others, was convicted in the U.S.
District Court for the Southern District of Indiana of crimes related
to their participation in a large drug conspiracy based in
Indianapolis, Indiana, and running from approximately 1992 to 1997.
U.S. v. Thompson, 286 F.3d 950 (7th Cir. 2002), cert. denied, 537 U.S.
1134 (2003).
In late 1996, Marcus Willis began working for law enforcement
officials and infiltrated the group. In June 1997, Willis was murdered
in a vehicle belonging to one of the defendants. Following that,
criminal charges were filed against petitioner and several other
participants in the conspiracy. Petitioner was charged with
conspiracy to distribute more than five kilograms of cocaine in
violation of 21 U.S.C. § 846 and murder of an informant in violation
of 18 U.S.C. § 1512(a)(1)(C). He was acquitted of the murder-related

1

Petitioner’s payment of the filing fee is pending.

charge.
At sentencing, the district court sentenced petitioner to life
imprisonment on the drug conspiracy count under §2D1.1 of the
Sentencing Guidelines and found that the §2D1.1(d)(1) murder crossreference was applicable to petitioner and certain other defendants.
Finally, the court sentenced petitioner to a consecutive term of 20
years for money laundering.
On appeal, the U.S. Court of Appeals for the Seventh Circuit
affirmed petitioner’s conviction and upheld the application of the
drug offense murder cross-reference to him, finding the evidence was
sufficient to show it was reasonably foreseeable to him that Willis
would be murdered with malice aforethought.
Petitioner also sought relief under 28 U.S.C. § 22552, alleging
his defense counsel provided ineffective assistance by failing to
properly challenge the application of the murder cross-reference to
him.
The habeas petition
In this action, petitioner seeks habeas corpus relief under
Burrage v. United States, ___ U.S. ___, 134 S.Ct. 881 (2014). In
Burrage, the U.S. Supreme Court held that a criminal defendant cannot
be held liable for the death-results enhancement provision unless the
use of the drug supplied was a but-for cause of the death.
Discussion
As a federal prisoner, petitioner has two distinct remedies for
post-conviction relief. First, he may challenge the legality of his
conviction or sentence by filing a motion under 28 U.S.C. § 2255 in

2

Doc. #1, par. 10, citing Spradley v. United States, No. 1:04-cv-55-LJM-WTL (S.D.
Ind. 2005).

the sentencing court. This provision generally provides a federal
prisoner with “one adequate and effective opportunity to test the
legality of his detention, in his initial §2255 motion.” Prost v.
Anderson, 636 F.3d 578, 586 (10th Cir. 2011). If that remedy is
unsuccessful, the prisoner may file a “second or successive” motion
under § 2255 only if the appropriate court of appeals grants prior
authorization, which requires a finding that the motion presents
either newly discovered evidence that would be sufficient to establish
by clear and convincing evidence that no reasonable factfinder would
have found the prisoner guilty or that the prisoner relies on a new
rule of constitutional law, made retroactive to cases on collateral
review by the U.S. Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
In contrast, “[p]etitions under § 2241 are used to attack the
execution of a sentence … [and] the fact or duration of a prisoner’s
confinement….” McIntosh v. United States Parole Comm’n, 115 F.3d 809,
811-12 (10th Cir. 1997)(quotations and brackets omitted). A petition
brought under § 2241 is filed in the district where the petitioner
is incarcerated.
The motion remedy under 28 U.S.C. § 2255 “is generally the
exclusive remedy for a federal prisoner seeking to attack the legality
of detention, and must be filed in the district that imposed the
sentence.” Brace v. United States, 634 F.3d 1167, 1169 (10th Cir.
2011)(citation omitted). The single exception to this appears in the
savings clause of § 2255(e), which provides: “a federal prisoner may
resort to § 2241 to contest his conviction if but only if the § 2255
remedial mechanism is ‘inadequate or ineffective to test the legality
of his detention.’” Prost, 636 F.3d at 580 (quoting 28 U.S.C.

§2255(e)). Petitioner has the burden of showing that the remedy under
§ 2255 is inadequate or ineffective. Brace v. United States, 634 F.3d
1167, 1169 (10th Cir. 2011).
Section 2255 provides an adequate remedy if it allows the
substance or an argument or claim to be presented, regardless of
whether circuit case law shows that the claim would be rejected. Prost
v. Anderson, 636 F.3d, 578, 591 (10th Cir. 2011). “[T]he [savings]
clause is concerned with process – ensuring the petitioner an
opportunity to bring his argument…. The ultimate result may be right
or wrong as a matter of substantive law, but the savings clause is
satisfied so long as the petitioner had an opportunity to bring and
test his claim.” Id. at 584-85.
Petitioner clearly is challenging the validity of his sentence,
as enhanced by the death-results provision. Such a claim ordinarily
must be presented to the sentencing court, and petitioner
unsuccessfully challenged the sentence enhancement both on appeal and
in his post-conviction action. While the Burrage decision was entered
long after petitioner’s direct appeal and post-conviction motion,
this alone does not render the remedy under § 2255 inadequate. “A
remedy is available under §2241 only if a claim procedurally could
not have been raised at all via § 2255, such as when the original
sentencing court has been dissolved or is unresponsive.” Boyce v.
Berkebile, 590 Fed.Appx. 825, 826 (10th Cir. 2015). “[T]he fact that
[a petitioner] may not have thought of a [Burrage]-type argument
earlier doesn’t speak to the relevant question whether § 2255 itself
provided him with an adequate and effective remedial mechanism for
testing such an argument.” Prost, 636 F.3d at 589.
Likewise, although the Burrage decision is viewed as a statutory

construction holding that cannot be brought as a successive action
under 28 U.S.C. § 2255(h), that does not entitle petitioner to proceed
under § 2241. “[T]he fact that § 2255 bars [a petitioner] from bringing
his statutory interpretation argument[s]..in a second § 2255 motion
[more that] a decade after his conviction, doesn’t mean the § 2255
remedial process was ineffective or inadequate to test his
argument[s]. It just means he waited too long to raise [them].” Prost,
636 F.3d at 580 (emphasis omitted). See also Brace, 634 F.3d at 1170
(citing Prost holding that “the fact that § 2255 bars [a prisoner]
from bringing a statutory interpretation argument in a second § 2255
motion does not render § 2255 an ineffective or inadequate remedy.”).
Having considered the record, the Court concludes this matter
must be dismissed without prejudice for lack of jurisdiction.
Petitioner’s arguments do not persuade the Court that the remedy under
§ 2255 is inadequate or ineffective. In fact, petitioner has
challenged the application of the sentence enhancement in the
sentencing court, and under Tenth Circuit precedent, he is not
entitled to proceed under § 2241.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed without prejudice for lack of jurisdiction.
IT IS SO ORDERED.
DATED:

This 28th day of November, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge