Challoner v. Sepanek

Filing 10

MEMORANDUM OPINION & ORDER: (1) Challoner's "Motion to Expedite Habeas Proceedings," R. 8 , is GRANTED. (2) Challoner's motion to alter, amend, or reconsider, R. 7 , is DENIED. Signed by Judge Amul R. Thapar on 11/2/2016. (TDA) cc: Challoner

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
DALE LLOYD CHALLONER, a/k/a
DALE CHALLONER,
Petitioner,
v.
MICHAEL SEPANEK, Warden,
Respondent.

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Civil No. 16-27-ART

MEMORANDUM OPINION
AND ORDER

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Dale Lloyd Challoner is an inmate at USP-Big Sandy, a federal prison in Inez,
Kentucky. Earlier this year, Challoner filed a habeas petition pursuant to 28 U.S.C. § 2241.
R. 1. But because Challoner wished to attack his conviction and sentence—rather than the
manner or execution of his sentence—he could proceed under Section 2241 only if he first
showed that the remedy afforded by 28 U.S.C. § 2255 is “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e). The Court determined that he could not and
so denied the petition. R. 5. Challoner now moves the Court to reconsider that ruling. R. 7.
BACKGROUND
In September 2000, Challoner and several acquaintances conspired to rob the Colorado
East Bank & Trust in La Junta, Colorado. See United States v. Challoner, 65 F. App’x 222,
224 (10th Cir. 2003). To distract police and provide cover for the robbery, Challoner threw
two Molotov cocktails through the window of an elementary school. Id. The conspirators
then kidnapped the bank’s president at gunpoint, drove him to the bank, and tried
unsuccessfully to open the bank’s vault before fleeing. Id. For this, a federal grand jury in the

District of Colorado charged Challoner with conspiring to rob a bank (18 U.S.C. § 371),
attempting to rob a bank (18 U.S.C. § 2113(a), (d)), brandishing a shotgun during an attempted
bank robbery (18 U.S.C. § 924(c)(1)(A)(ii)), damaging property by arson (18 U.S.C. § 844(i)),
using a destructive device during a bank robbery (18 U.S.C. § 924(c)(1)(B)(ii)), possessing an
unregistered destructive device (26 U.S.C. § 5861), and using fire and an explosive to rob a
bank (18 U.S.C. § 844(h)).1 See Challoner, 65 F. App’x at 224; Appellee’s Answer Brief at
13–14, United States v. Challoner, 583 F.3d 745 (10th Cir. 2009) (No. 08-1335), 2009 WL
1258500. A jury convicted Challoner on all seven counts. See Challoner, 65 F. App’x at 225.
And the district court duly sentenced him to 1,080 months, or 90 years. Id.
Challoner twice challenged his conviction and sentence without success. He first filed
a direct appeal to the Tenth Circuit. As grounds, Challoner argued that there was insufficient
evidence that he had carried an explosive device during the attempted robbery, that the district
court should have departed downward, and that his sentence was constitutionally
disproportionate. Id. at 225–27. The Tenth Circuit rejected all three arguments and affirmed.
Id. Six years later, Challoner filed a habeas petition pursuant to 28 U.S.C. § 2255. In the
district court, Challoner argued that his trial counsel had been constitutionally ineffective and
that the court should not have imposed consecutive sentences. The district court rejected these
arguments. See generally United States v. Challoner, Criminal No. 00-cr-00482-EWN, 2008
WL 4211103 (D. Colo. Sept. 10, 2008). On appeal before the Tenth Circuit, Challoner
concentrated on a single issue: whether his convictions for brandishing a shotgun, carrying a
Molotov cocktail, and using fire and an explosive violated the Double Jeopardy Clause. See

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The district court dismissed an eighth count before trial. Challoner, 65 F. App’x at 224.

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United States v. Challoner, 583 F.3d 745, 747–49 (10th Cir. 2009). The Tenth Circuit refused
to reach the merits of the issue, however, because Challoner had not shown cause excusing his
failure to raise this same question on direct review. Id. at 750.
In March 2016, Challoner tried again. But this time, he moved from Section 2255 to
Section 2241, and from the Tenth Circuit to this Court. See R. 1. In his latest effort, Challoner
argues that he is “actually innocent” of the crimes for which the jury convicted him, that
prosecutors engaged in misconduct, and that his sentence exceeds the statutory maximum. See
id. at 6–9. The Court denied Challoner’s Section 2241 petition because he had not shown that
the remedy afforded by Section 2255 was “inadequate or ineffective” to challenge his
conviction and sentence. R. 5 at 8 (quoting 28 U.S.C. § 2255(e)). Challoner has since filed a
motion to reconsider, arguing that the Court erred by denying his petition and by doing so
without adequate explanation. See R. 7 at 2–3. The Court disagrees and will deny the motion.
DISCUSSION
Section 2241 is not an open call for prisoners wanting to relitigate their cases. A
prisoner may, of course, challenge the manner or execution of his sentence via a Section 2241
petition. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). But if he wants to
argue that his conviction or sentence is itself unlawful, then he must go instead through 28
U.S.C. § 2255. Peterman, 249 F.3d at 461. That is, with one exception: A prisoner may
challenge his conviction or sentence under Section 2241 if he first proves that the “remedy by
motion [under Section 2255] is inadequate or ineffective to test the legality of his detention.”
28 U.S.C. § 2255(e). As the Court previously explained, Challoner cannot make this showing.

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The Sixth Circuit has said that Section 2255(e)’s “savings clause” applies only where
a petitioner demonstrates “actual innocence.” Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir.
2012) (internal quotation marks omitted). Actual innocence means “factual innocence, not
mere legal insufficiency.” Id. (quoting Bousley v. United States, 523 U.S. 614, 623 (1998))
(internal quotation mark omitted). In his petition, Challoner argues that he is actually innocent
of arson because the public elementary school he burned is not sufficiently tied to interstate
commerce. R. 1 at 7. Challoner also contends that his convictions for possessing and using
Molotov cocktails must fall because he never employed them as weapons. Id. at 7–8. In
essence, Challoner argues that the statutory offenses in question—18 U.S.C. §§ 844(i),
924(c)(1)(B)(ii), and 26 U.S.C. § 5861—never actually criminalized his particular conduct.
See R. 1 at 7–8. Under certain circumstances, an argument like this could raise a question as
to a defendant’s actual innocence. See, e.g., Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003)
(construing pro se petitioner’s argument “that he could not be guilty of the federal bombing
statute because he bombed a private residence” as an “‘actual innocence’ argument”).
But there’s a problem here. To advance this line of argument under Section 2241,
Challoner would have to identify some intervening change in law that “make[s] it more likely
than not that no reasonable juror would have convicted him” if properly instructed. Wooten,
677 F.3d at 307–08. Challoner has not done so. He has not identified any Supreme Court
decision reinterpreting the substantive law underlying his convictions on these counts. Nor
has he pointed to any Sixth Circuit decision doing as much. And as a result, these challenges
do not speak to Challoner’s “actual innocence” within the meaning of the savings clause. See,
e.g., Hill v. Masters, – F.3d —, No. 15-5188, 2016 WL 4655739, at *5 (6th Cir. Sept. 7, 2016)
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(“Although we have yet to determine the ‘exact scope of the savings clause,’ we have held that
when a petitioner fails to identify a new case of statutory interpretation on which to base his
§ 2241 habeas claim, he fails to satisfy the savings clause and cannot reach § 2241.”).
Challoner’s assertion that he never used the Molotov cocktails as weapons fails to bear
on his actual innocence for another reason. The jury convicted Challoner of possessing an
unregistered destructive device, in violation of 26 U.S.C. § 5861, and using a destructive
device “during and in relation to any crime of violence” (i.e., conspiracy to commit bank
robbery), in violation of 18 U.S.C. § 924(c)(1)(B)(ii). Even if Challoner never used the
Molotov cocktails to harm anyone, that would not mean he was innocent of these crimes. A
Molotov cocktails is a “destructive device” within the meaning of both statutes. See 18 U.S.C.
§ 921(a)(4); 26 U.S.C. § 5845(f); United States v. Cruz, 270 F. App’x 393, 396 (6th Cir. 2008);
United States v. Franklin, 298 F. App’x 477, 478–79 (6th Cir. 2008). And while both statutes
make clear that a “destructive device” must be “designed or redesigned for use as a weapon,”
neither requires proof that the defendant actually used the device as a weapon. That is really
the whole ball game: Challoner’s argument is irrelevant to these two counts. Challoner does
not argue that he lawfully registered or possessed the Molotov cocktails, so he has not cast
doubt on any element of his registration conviction. See 26 U.S.C. § 5681. Similarly,
Challoner does not contest that he used the Molotov cocktails “during and in relation” to the
bank robbery—only whether he used them “as a weapon.” But, again, the statute does not
require proof of use “as a weapon.” See 18 U.S.C. § 924(c)(1)(B)(ii). And since attempting
to rob a bank by force is clearly a crime of violence, see, e.g., United States v. Green, 115 F.3d
1479, 1486–87 (10th Cir. 1997), Challoner again fails to raise any hint of his actual innocence.
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On another front, Challoner argues that “new evidence” proves that the Colorado East
Bank & Trust “was not federally insured by the FDIC at the time of the robbery.” R. 1 at 6.
This evidence, Challoner insists, proves that federal authorities had no jurisdiction to prosecute
him. This particular claim—that he has new evidence that could prove his innocence—is one
that might be cognizable on a second or successive motion under Section 2255. See 28 U.S.C.
§ 2255(h)(1). But Challoner has not asked the Tenth Circuit for permission to bring such a
motion. See id. It is possible that this claim is time-barred, see 28 U.S.C. § 2255(f), or that
the Tenth Circuit will deny Challoner’s request, see 28 U.S.C. §§ 2255(h), 2244. But the fact
that either of those things might happen, does not mean that the remedy afforded by Section
2255 is somehow inadequate or ineffective. See, e.g., Peterman, 249 F.3d at 461. Until
Challoner tries to secure the Tenth Circuit’s permission and is denied, or until he at least
establishes that his claim would be barred by some procedural or other limitation, he cannot
even begin to make that showing. See, e.g., Stafford v. Hemingway, 92 F. App’x 176, 177–78
(6th Cir. 2004); Leslie v. United States, 89 F. App’x 960, 961 (6th Cir. 2004).
Challoner’s “new evidence” argument also faces another, familiar problem: it seems
to do nothing to prove he is innocent of the bank-robbery charges. In one respect, Challoner
is correct: Whether a particular bank is FDIC-insured is sometimes relevant to a federal bank
robbery charge. In fact, the corresponding statute defines “bank” to include “any institution
the deposits of which are insured by the Federal Deposit Insurance Corporation.” See 18
U.S.C. § 2113(f). Colorado East Bank & Trust was insured continuously by the FDIC from
January 1, 1934, to its merger with another bank on August 1, 2016, which encompasses the

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relevant period. See BankFind, Fed. Deposit Ins. Corp., https://goo.gl/jIyS4y (last visited Oct.
21, 2016).
Challoner’s two remaining claims fare no better. Challoner wishes to argue that the
prosecutor violated his ethical responsibilities by (1) pursuing charges against Challoner
without probable cause and (2) failing to investigate whether Colorado East Bank & Trust was
FDIC-insured. See R. 1 at 8. The first claim merely assumes that Challoner is innocent. The
second appears to both rely on a faulty premise (that the bank was not insured) and suggest
(without support) that it was the prosecutor’s job to prepare Challoner’s defense. And so
neither claim actually does anything to suggest Challoner’s innocence.

See Charles v.

Chandler, 180 F.3d 753, 755, 757 (6th Cir. 1999) (per curiam); Cannon v. Johnson, 23 F.
App’x 218, 220 (6th Cir. 2001).
Lastly, Challoner argues that his ninety-year sentence exceeded the statutory
maximum.

See R. 1 at 9. If he were right, Challoner might have been able to pursue this

claim under Section 2241. See, e.g., Hill, 2016 WL 4655739, at *4 (“We also agree with the
Government’s position that a habeas petition may be brought pursuant to § 2241 when a
sentence exceeds the maximum prescribed by statute.”). But he’s not. Challoner’s argument
relies on single premise: that his ninety-year sentence exceeded the longest sentence allowed
for any of his individual convictions. See R. 1 at 9. He makes three mistakes.
First, two of Challoner’s convictions carried maximums in excess of ninety years.
Those offenses—brandishing a shotgun, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and
carrying a destructive device, in violation of 18 U.S.C. § 924(c)(1)(B)(ii)—were punishable
by up to life in prison. See United States v. Harris, 397 F.3d 404, 411 (6th Cir. 2005); United
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States v. Morgan, 572 F. App’x 292, 300 (6th Cir. 2014). And legally, if not always
biologically, life is certainly longer than ninety years. Indeed, the district court was required
by statute to run the sentences for these offenses consecutively. See 18 U.S.C. § 924(c)(1)(D).
So, in truth, Challoner faced—from just these two counts alone—the possibility of consecutive
life sentences. See, e.g., United States v. Charley, 417 F. App’x 627, 629 (9th Cir. 2011).
Second, the prison terms that the district court imposed for each of Challoner’s offenses
of conviction were within the corresponding maximums. The court gave Challoner 60 months
for conspiring to rob a bank (Count 1) and 300 for attempting to do it (Count 2)—both the
maximum terms allowed. See 18 U.S.C. §§ 371, 2113(d). Though Challoner’s use of a
shotgun (Count 3) and a Molotov cocktail (Count 5) could each have carried life, see Morgan,
572 F. App’x at 300, the court gave him 300 and 360 months instead. Challoner also got 240
months for arson (Count 4); another maximum. See 18 U.S.C. § 844(i). And the court gave
him 120 months each for possessing an unregistered destructive device (Count 6) and for using
fire and an explosive to rob a bank (Count 14)—the first, a maximum, and the second, the
exact term required by statute. See 26 U.S.C. § 5871; 18 U.S.C. § 844(h). So at the end of the
day, not one of Challoner’s terms of imprisonment exceeded the maximum authorized by law.
Third, the fact that the district court ran some of these terms consecutively does not
change this equation. The court sentenced Challoner to 300 months on Count 2, to run
concurrently with his shorter sentences on Counts 1, 4, and 6. On top of that, the Court ordered
consecutive terms of 300 months (Count 3), 360 months (Count 5), and 120 months (Count
14). In other words, the court “stacked” the sentences for Counts 3, 5, and 14 after all the
others, resulting in a total sentence of 1,080 months. Why? Because Congress dictated that
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sentences for these particular offenses could not be run at the same time as any others. See 18
U.S.C. §§ 844(h), 924(c)(1)(D). Now, Challoner’s total sentence is of course longer than the
maximums applicable to some of his individual offenses—e.g., ninety years is longer than the
twenty-five allowed for attempted bank robbery, see 18 U.S.C. § 2113(d). But again, the
individual terms of imprisonment that the district court imposed for each of Challoner’s
offenses were within the governing maximums. That Congress required the district court to
run some of these terms consecutively did not change that fact. Cf. United States v. Campbell,
317 F.3d 597, 604 (6th Cir. 2003) (affirming district court’s imposition of consecutive sixtymonth sentences on two separate counts that each carried a statutory maximum of sixty
months); United States v. Jeross, 521 F.3d 562, 579 (6th Cir. 2008) (similar).
CONCLUSION
Accordingly it is ORDERED as follows:
(1)

Challoner’s “Motion to Expedite Habeas Proceedings,” R. 8, is GRANTED.

(2)

Challoner’s motion to alter, amend, or reconsider, R. 7, is DENIED.

This the 2nd day of November, 2016.

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