Cantrell v. Sepanek

Filing 4

MEMORANDUM OPINION & ORDER; 1) petition for writ of habeas corpus is DENIED 2) Court will enter an appropriate judgment 3) habeas proceedings is DISMISSED AND STRICKEN From court's active docket. Signed by Judge Henry R. Wilhoit, Jr on 3/14/14.(SMT)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

ROBERT J. CANTRELL,

)

)
)
)

Petitioner,
v.
MICHAEL SEPANEK, WARDEN,
Respondent.

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Robert J. Cantrell

IS

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)
)
)
)
)

Civil Action No. 13-169-HRW

MEMORANDUM OPINION
AND ORDER

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****

an inmate confined in the Federal Correctional

Institution located in Ashland, Kentucky. Cantrell has filed, by and through his
counsel [D. E. No.3] a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241, challenging his 2008 federal conviction for honest services fraud and his 78­
month sentence. [D. E. No.1] Cantrell has paid the $5.00 filing fee. [ld.]
The Court reviews the § 2241 petition to determine whether, based on the
face of the petition and any exhibits attached thereto, Cantrell is entitled to relief.

See Rule 4, Rules Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241
petitions under Rule l(b)). See, e.g., Patton v. Fenton, 491 F. Supp. 156, 158-59
(M.D. Pa. 1979); see also 28 U.S.C. § 2243. A district court may summarily
dismiss a petition if it appears from its face that the petitioner is not entitled to

relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F. App'x 216, 218 (6th Cir.

2001); Allen v. Perini, 424 F.2d 134,141 (6th Cir. 1970).
The Court has reviewed Cantrell's habeas petition, vanous attachments
thereto, and memorandum of law, but determines that it must deny the petition
because Cantrell cannot not pursue his claims under 28 U.S.C. § 2241.

BACKGROUND
In March 2007, an eleven-count indictment was handed down in an Indiana
federal court, charging Cantrell with committing honest services fraud by using his
position in public office to steer contracts to a third party in exchange for
kickbacks, in violation of 18 U.S.C. §§ 1341 and 1346; insurance fraud by
deceptively procuring coverage for two of his children, in violation of 18 U.S.C. §
1341; and filing false income tax returns by not reporting the kickbacks, in
violation of 26 U.S.C. § 7206(1). United States v. Cantrell, No. 2:07-CR-44-PRC
(N. D. Ind. 2007).
On June 6, 2008, a jury convicted Cantrell on all eleven counts. [Id., D. E.
No. 67 , therein] On March 31, 2009, Cantrell was sentenced to a 78-month prison
term, plus a 3-year term of supervised release.

[Id., D. E. No. 128, therein]

Cantrell appealed, primarily challenging his sentence on the grounds that the
district judge applied an incorrect guideline and failed to address his arguments for

2

leniency, but he also preserved a challenge to his four convictions on the honest
services

fraud

counts,

arguing that

because

18

U. S.C.

§

1346

was

unconstitutionally vague, he was thus improperly charged with and convicted of
that offense.

The Seventh Circuit affirmed both Cantrell's sentence and his

conviction on the honest services fraud counts. United States v. Cantrell, 617 F .3d
909 (7th Cir. 2010).
The Seventh Circuit explained that while Cantrell's appeal was pending, the
Supreme Court decided Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896
(2010), Black v. United States, 561 U.S. 465 (2010), and Weyhrauch v. United
States, 561 U.S.476 (2010), all of which involved 18 U.S.C. § 1346, the honest
services statute. Cantrell, 617 F .3d at 921. The court explained that in Skilling,
the most comprehensive of the three opinions, the Supreme Court determined that
the "honest services" component of the federal mail-fraud statute was not
unconstitutionally vague, but narrowly interpreted § 1346 such that it criminalizes
only schemes to defraud that involve bribes or kickbacks, i.e., schemes where one
fraudulently deprives another of one's honest services by accepting bribes or
kickbacks. Cantrell, 617 F.3d at 921 (citing Skilling, 130 S. Ct. at 2933).
Applying Skilling to Cantrell's § 1346 conviction, the Seventh Circuit stated
that Cantrell was charged with using his position as a public official of North

3

Township of Lake County, Indiana, to secure contracts with a counseling company
owned by an acquaintance in exchange for a share of the proceeds (kickbacks)
from the contracts, conduct which 1346 prohibits. Id. The court stated:
By failing to fairly, honestly, and candidly award contracts, Cantrell
defrauded North Township and its citizens of their right to his honest
services. This was clearly a kickback scheme, so § 1346--even as
pared down by Skilling--applies to Cantrell. As he presents no other
challenge to his convictions, they will not be disturbed.

Id.
CANTRELL'S § 2255 MOTION
On February 7, 2012, Cantrell filed a motion in the district court to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

See Cantrell

Criminal Action, 2:07-CR-44, D. E. No. 165, therein; see also Cantrell v. United

States, No. 2: 12-CV-59-RL (N.D. Ind. 2012). Cantrell challenged his convictions
for honest services fraud, claiming constitutionally ineffective assistance of both
his trial and appellate counsel, in violation of his rights guaranteed under the Sixth
Amendment of the U.S. Constitution and the standards established in Strickland v.

Washington, 466 U.S. 668 (1984), which holds that to establish ineffective
assistance of counsel, the petitioner must show that his counsel's performance was
deficient and that the deficient performance prejudiced him.

4

Cantrell alleged his trial counsel failed to allow him to testify on his own
behalf and to call two key witnesses and that as a result, he was prejudiced.
Cantrell further alleged that his first appellate counsel failed to adequately argue
how Skilling's and Black's substantive changes in the law impacted his convictions
for honest services fraud, and failed to object to allegedly erroneous jury
instructions on the honest services fraud counts.
On March 29, 2013, the district court denied the § 2255 motion, finding that
Cantrell failed to establish that either his trial or his appellate counsel rendered
constitutionally ineffective assistance. [See Cantrell Criminal Action, D. E. No.
195; Cantrell v. United States, Nos. 2: 12-CV-59, 2:07-CR-44, 2013 WL 1332239

(N.D. Ind. Mar. 29, 2013]'

As for his allegation that he was denied effective

assistance of appellate counsel, Cantrell asserted four specific arguments, but the
district determined that none of them had merit.
First, the court rejected Cantrell's assertion that his appellate failed to
adequately brief and argue the impact of the Skilling case, noting that in the
appellate brief, counsel not only argued that § 1346 was unconstitutionally vague,
but also cited the then-pending Skilling and Black cases as authority for that

The district court's rejection of Cantrell's first claim, that his trial counsel rendered
ineffective assistance, is set forth in Cantrell, 2013 WL 1332239, at **2-5. That discussion is
not germane to the claims which Cantrell currently asserts in this habeas proceeding.
5

proposition. Cantrell, 2013 WL 1332239, at *6. Further, the district court noted
that after oral argument, but before the Seventh Circuit decided Cantrell's appeal,
Cantrell's appellate counsel submitted a letter of supplemental citations, stating
that the Supreme Court had since decided Skilling and Black, and explaining why
the two the rulings supported Cantrell's argument that his § 1346 conviction was
unconstitutional. Id., at *7
After reviewing the record as a whole, the district court determined that
Cantrell's appellate counsel " ...acted reasonably in handling Cantrell's appeal."
Id., at *8. The court rejected Cantrell's contention that his appellate counsel could

have raised more extensive arguments about the impact of Skilling and Black,
concluding that Cantrell's argument was based on hindsight of which Cantrell's
counsel did not have the benefit. Id.
Further, the court noted that when Cantrell's appellate brief was filed, his §
1346 convictions were governed by United States v. Sarich, 523 F.3d 702 (7th Cir.
2008), under which Cantrell's § 1346 convictions would have been upheld.
Cantrell, at *8. The court explained that given the state of the law at that time,

Cantrell's appellate counsel's did not perform deficiently by devoting much of his
appellate brief to sentencing issues instead of focusing on the pending Skilling and
Black cases. Id., at *8 (citing Strickland, 466 U.S. at 689 (holding that the court

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should evaluate performance from counsel's perspective at the time); Stone v.
Farley, 86 F.3d 712, 717 (7th Cir. 1996) ("Failure to raise a losing argument ...

does not constitute ineffective assistance of counsel.")). The court stated:
While appellate counsel obviously knew of the Skilling and Black
cases while Cantrell was being appealed, it would have taken an
oracle to predict exactly how the Supreme Court would decide those
cases. Indeed, Cantrell concedes that the Black and Skilling decisions
"completely altered the legal landscape of honest services fraud."
(docket citation omitted). Thus, the manner in which appellate
counsel raised the issue on appeal was more than reasonable and
provided effective assistance. United States v. Keeling, 116 Fed.
App'x. 958, 959 (10th Cir. 2004) (holding that "counsel's failure to
foresee future developments in the law does not constitute
constitutionally deficient performance. ") (citation omitted).
Id.

Second, the district court determined that Cantrell's appellate counsel acted
reasonably after the Supreme Court rendered the Skilling and Black decisions. Id.,
at *9.

Cantrell alleged that his counsel should have addressed the impact of

Skilling and Black in a supplemental brief, but the district court concluded

otherwise, finding that counsel's decision to address the impact of these decisions
in a supplemental letter filed pursuant to Federal Rule of Appellate Procedure 28
was adequate, and that "appellate counsel's failure to file a supplemental brief
regarding cannot be said to be constitutionally deficient." Id.

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Third, the district court rejected Cantrell's arguments that his trial counsel
failed to raise the jury instruction that the appellant made in Black, and that his
appellate counsel then failed to raise the jury instruction issue in the appellate
brief. Id. The district court reiterated that Black was not decided until after the
oral argument in Cantrell's appeal, and that in his FRAP 28 letter, Cantrell's
appellate counsel discussed how the Black decision impacted the jury instruction
challenge. Id. Further, the district court noted that on direct appeal of Cantrell's
conviction, the Seventh Circuit explained the indictment charged Cantrell with
conduct that unquestionably qualified as a "kickback scheme" under § 1346. Id.
The district court stated, "Nothing in the Seventh Circuit's opinion indicates that it
based its opinion on any of appellate counsel's alleged deficiencies complained of
by Cantrell." Id., at * 10.
Fourth, the district court noted that the two weeks after the Seventh Circuit
affirmed Cantrell's conviction, Cantrell's second appellate counsel filed a IS-page
petition for rehearing, in which they asserted additional legal arguments based on
the Skilling and Black decisions. Id. The district court emphasized that even after
being presented with those additional legal arguments, all of the judges on the

8

appellate panel voted to deny a rehearing; none of the judges requested a vote for
rehearing en bane; and the petition for rehearing was denied. Id. 2
In conclusion, the district court determined under the objective standard of
reasonableness, Cantrell's appellate counsel provided " ... more than adequate
assistance to Cantrell, especially in light of counsel's perspective at the time
without knowing the Supreme Court's decisions in Skilling and Black. Because
Cantrell failed to show his appellate counsel acted deficiently, there is no need to
examine the prejudice prong." Id.
When the district court denied Cantrell's § 2255 motion, it also denied him a
certificate of appealability. Cantrell did not appeal the denial of his § 2255 motion.
He filed this § 2241 proceeding on November 25, 2013.
2

The district court concluded that the fact that the Seventh Circuit denied Cantrell's
petition for rehearing was a significant indication that the Seventh Circuit was not persuaded that
Skilling and Black applied to Cantrell or provided him relief from his § 1346 convictions.
Therefore, the district court concluded that Cantrell did not receive ineffective assistance of
appellate counsel, explaining as follows:
Cantrell downplays the significance of his second appellate counsel's assistance,
and argues that it does not remediate prior appellate counsel's deficiencies
because the Seventh Circuit Court of Appeals has discretion in whether to grant a
petition for rehearing. This Court disagrees with Cantrell's belief that the
petition for rehearing was insignificant. Even though the Seventh Circuit
has discretion to entertain such a petition, it is hard for this Court to believe
that the Seventh Circuit would refuse to rehear a case if a rehearing was
warranted. In sum, the Court finds Cantrell received a fair appeal and his
appellate counsel provided adequate assistance.

Cantrell, at *10 (emphasis added).

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CLAIMS ASSERTED IN THE § 2241 PETITION

Cantrell alleges that as for his convictions for honest services fraud, he was
"convicted and is serving a sentence for conduct that the law no longer makes
criminal.. ..Cantrell is actually innocent of honest services fraud as that statute was
interpreted by the U.S. Supreme Court in Skilling v. Us., 130 S. Ct. 2896 (2010)
and Black v. Us., 130 S. Ct. 2963 (2010)." [D. E. No.1, p. 2, § 6(c)]. Cantrell
alleges that he was convicted of honest services fraud " ...based upon a violation of
state conflict of interest law, not upon a finding of bribery or kickbacks..." [Id. p. 5
§ 1O(c)). Cantrell thus contends that he stands convicted of conduct that "...has
since been decriminalized by the Supreme Court." Id.
Cantrell asserts that the Skilling and Black decisions are retroactively
applicable to him; that because these decisions were rendered after he was
convicted, his remedy under § 2255 was inadequate and ineffective to challenge
his detention; and that he has"... never had a reasonable opportunity to claim actual
innocence."

Id.

Cantrell alleges that although his claims were "partially"

mentioned on appeal by counsel, they were not "fully briefed." [Id., p. 7 § 13]
In his 30-page Memorandum of Law, Cantrell expounds on these claims.
[D. E. No. 1-1]

Cantrell discusses at length his belief that the Skilling and Black

decisions exonerate him from his convictions for honest services fraud, and his

10

contention that his appellate counsel improperly focused on sentencing issues in
the appellate brief, instead of focusing on the favorable impact that Skilling and
Black should have had on his convictions for honest services fraud. [Id., pp. 16­
19] Cantrell also discusses several recent cases from 2011-2012 which interpret
and apply the holdings of Skilling, Black, and Weyhrauch. [Id., pp. 19-30]
Cantrell asks this Court to vacate his honest services fraud convictions,
which, he claims, "drove the guideline calculation." [D. E. No.1, p. 8]
Alternatively, Cantrell asks this Court to recalculate his sentence under the federal
guidelines absent his convictions for honest services fraud, and to "remand on
remaining guideline convictions." [Id.]
DISCUSSION
Cantrell is not challenging the execution of his sentence, such as the
computation of sentence credits or parole eligibility, issues which fall under the
ambit of § 2241.

United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1999).

Instead, Cantrell essentially challenges the constitutionality of his underlying
federal conviction and sentence on Sixth Amendment grounds. Cantrell alleges
that his appellate counsel failed to adequately explain to the Seventh Circuit Court
of Appeals why Skilling, Black, and Weyhrauch relieved him of criminal
responsibility under § 1346. But § 2241 is not the mechanism for asserting such a

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challenge: 28 U.S.C. § 2255(a) provides the primary avenue of relief for federal
prisoners seeking relief from an unlawful conviction or sentence, Terrell v. United

States, 564 F.3d 442, 447 (6th Cir. 2009), and is the mechanism for collaterally
challenging errors that occurred "at or prior to sentencing." Eaves v. United States,
4:10-CV-36, 2010 WL 3283018, at *6 (E.D. Tenn. Aug. 17,2010).
Section 2255(e) provides a narrow exception to this rule, and permits a
prisoner to challenge the legality of his conviction through a § 2241 petition, where
his remedy under Section 2255 "is inadequate or ineffective" to test the legality of
his detention. This exception does not apply where the petitioner failed to seize an
earlier opportunity to correct a fundamental defect in his conviction under pre­
existing law, or where he did assert his claim in a prior post-conviction motion
under § 2255, but was denied relief. Charles v. Chandler, 180 F.3d 753, 756 (6th
Cir. 1999); United States v. Prevatte, 300 F.3d 792,800 (7th Cir. 2002).
In his § 2255 motion, Cantrell previously argued at length that he received
ineffective assistance of counsel during his criminal appellate proceeding, based on
counsel's alleged failure to adequately address the impact of Skilling, Black, and

Weyhrauch on his honest services fraud convictions under § 1346. As set forth
previously herein, the district court issued a comprehensive opinion rejecting that
same contention.

The district court determined that during all stages of the

12

appellate process, Cantrell's first appellate counsel acted reasonably in addressing
the applicability of the Skilling, Black, and Weyhrauch to Cantrell's pending
appeal, and that as a result, Cantrell's Sixth Amendment rights were not violated.
In his § 2241 petition, Cantrell has done nothing more than re-brief his
earlier arguments that Skilling and Black, and the more recent progeny of those two
cases, entitle him to relief from his § 1346 convictions for honest services fraud.
He is also impliedly re-hashing the same Sixth Amendment ineffective assistance
of appellate counsel claim that he unsuccessfully raised in his § 2255 motion: that
his first appellate counsel failed to convincingly argue that Skilling, Black, and

Weyhrauch render him innocent of his honest services fraud convictions. The
district denied Cantrell's § 2255 motion and also denied him a certificate of
appealability, after thoroughly evaluating not only the Seventh Circuit's published
opinion affirming Cantrell's § 1346 conviction, but also Cantrell's unsuccessful
petition asking the Seventh Circuit to rehear the case, which petition contained
additional briefing about Skilling, Black, and Weyhrauch.
The remedy under § 2255 is not inadequate where a petitioner asserted a
legal argument in a § 2255 motion but was denied relief on the claim. Charles,
180 F.3d at 756-58. Section 2241 is not an additional, alternative, or supplemental
remedy to the one provided in § 2255. Id., at 758. That Cantrell was unsuccessful

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on his Sixth Amendment claims in his § 2255 motion does not entitle him to relief
under § 2241. See Lucas v. Berkebile, No. 7:11-28-HRW, 2012 WL 2342888, at
*2 (E.D. Ky. June 19, 2012) ("Section 2241 is not an available to a petitioner who
merely wishes to reargue claims considered and rejected in a prior motion under
Section 2255.")
Alternatively, a prisoner proceeding under § 2241 can use the savings clause
of § 2255 if he alleges "actual innocence," Bannerman v. Snyder, 325 F.3d 722,
724 (6th Cir. 2003); Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003).
An actual innocence claim can arise only where, after the prisoner's conviction
became final, the Supreme Court re-interprets the substantive terms of the criminal
statute under which he was convicted in a manner that establishes that his conduct
did not violate the statute. See Barnes v. United States, 102 F. App'x 441, 443 (6th
Cir. 2004) ("A prisoner who can show that an intervening change in the law
establishes his actual innocence can invoke the savings clause of § 2255 and
proceed under § 2241."); Lott v. Davis, 105 F. App'x 13, 14-15 (6th Cir. 2004).
To make this showing, the movant must allege a new rule of law made
retroactive by a Supreme Court case, such as the claim raised in Bailey v. United

States, 516 U.S. 137 (1995). Townsend v. Davis, 83 F. App'x 728 (6th Cir. 2003);
United States v. Peterman, 249 F.3d. 458,461 (6th Cir. 2001). Cantrell does not,

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however, point to any retroactively applicable Supreme Court decision which
would afford him relief from his conviction.
Cantrell alleges that Skilling and Black are "retroactively applicable" cases
which afford him relief from his § 1346 convictions, but he ignores key facts in
making this claim. On direct appeal of his convictions and sentence, Cantrell's
appellate counsel brought both of these cases to the attention of the Seventh Circuit
on three separate occasions: first, in the original appellate brief; second, in the
supplemental letter filed pursuant to FRAP 280); and third, in the petition for
rehearing filed by Cantrell's second appellate counsel.

Thus, Cantrell cannot

legitimately argue that these cases qualify as new statements of law which he did
not have the opportunity to address either on direct appeal or in his § 2255 motion.
As the district court explained to Cantrell when it denied his § 2255 motion,
had the Seventh Circuit been convinced that Cantrell's convictions for honest
services fraud under § 1346 ran afoul of the subsequently rendered Skilling, Black,
and Weyhrauch decisions, it had an ample opportunity to reverse those convictions,
but it refused to do so. Instead, as the district court correctly noted, the Seventh
Circuit expressly affirmed Cantrell's § 1346 convictions, stating as follows:
By failing to fairly, honestly, and candidly award contracts, Cantrell
defrauded North Township and its citizens of their right to his honest
services. This was clearly a kickback scheme, so § 1346--even as
pared down by Skilling--applies to Cantrell. As he presents no
other challenge to his convictions, they will not be disturbed.
15

Cantrell, 617 F.3d at 921 (emphasis added).
Thus, Cantrell has not alleged a claim of actual innocence as to his § 1346
convictions. Because Cantrell alleges that he was denied effective assistance of
appellate, and because of his pro se status, the Court will briefly note two other
cases, Missouri v. Frye,

u.s. _,

U.S._, 132 S.Ct. 1399 (2012), and Lafler v. Cooper,

132 S.Ct. 1376 (2012), which discuss when a defendant may assert

certain types of claims alleging ineffective assistance of counsel. 3 Neither of these
cases assist Cantrell because (1) Cantrell was not denied effective assistance of
appellate counsel for the reasons set forth herein; and (2) even if Cantrell had been
denied effective assistance of counsel, these cases do not announce a new
constitutional rule, and therefore do not apply retroactively to cases on collateral
review. See In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013); Buenrostro v. United
States, 697 F.3d 1137,1140 (9th Cir. 2012); In re King, 697 F.3d 1189 (5th Cir.
2012); Hare v. United States, 688 F.3d 878, 879 (7th Cir. 2012); In re Graham,
714 F.3d 1181,1183 (lOth Cir. April 23, 2013).

3

In Frye, the Supreme Court held that defense counsel has a duty to communicate formal
offers from the prosecution to accept a plea on terms that may be favorable to the accused, prior
to the offer's expiration, and that defense counsel's failure to inform a defendant of a written
plea offer before it expired satisfies the deficient performance prong of the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1986). In Lafler, the defendant went to trial rather than
accept a plea deal as a result of ineffective assistance of counsel during the plea negotiation
process. Lafler, 132 S.Ct. at 1386. The defendant received a substantially more severe sentence
at trial than he likely would have received by pleading guilty. Id.
16

In summary, Cantrell has not shown that his remedy under § 2255 was an
inadequate and ineffective means of challenging his federal detention, nor has he
established a claim of actual innocence as to his § 1346 convictions for honest
services fraud. Therefore, he is not entitled to proceed under § 2241, and the Court
will deny his petition and dismiss this proceeding.
CONCLUSION

Accordingly, IT IS ORDERED that:

1.

Robert J. Cantrell' 28 U.S.C. § 2241 petition for a writ of habeas

corpus [D. E. No.1] is DENIED;
2.

The Court will enter an appropriate judgment; and

3.

This habeas proceeding is DISMISSED and STRICKEN from the

Court's docket.
This March 14, 2014.

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