Angle v. United States

Filing 6

Order: The Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is denied and this action is dismissed pursuant to 28 U.S.C. § 2243. Further, the Court CERTIFIES pursuant to 28 U.S.C. §1915(a)(3) that an appeal from this decision could not be taken in good faith.. Judge James G. Carr on 6/11/15. (C,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Ralph Wayne Angle,
Petitioner,

Case No. 4:14 CV 2502
JUDGE JAMES G. CARR

v.
ORDER
United States,
Respondent.

Pro se Petitioner Ralph Wayne Angle filed the above-captioned Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. Petitioner is incarcerated in FCI Elkton, serving a 300 month
sentence from his 1998 conviction in the Northern District of Indiana on charges of attempted
receipt of child pornography, possession of child pornography, and attempted solicitation of a minor
using the internet and telephone to engage in sexually prohibited activity. In his Petition, he claims
the Seventh Circuit Court of Appeals issued an opinion after he was convicted that more narrowly
defined the term “sexually prohibited activity,” making him no longer guilty of attempted
solicitation of a minor. He seeks reversal of his conviction on the third count, and retrial on the first
and second counts.
I. Background
Petitioner engaged in sexually explicit conversations through the internet with an individual
he believed to be a thirteen-year old boy named Jeff. The boy was actually an adult male, Ted

Gross, a Colorado resident who created the thirteen-year old boy persona after viewing his
children’s internet activities. Gross reported Petitioner to the FBI when Petitioner began engaging
in online sexual chats and messaging with “Jeff.” During these conversations, Petitioner engaged
in grooming activities, offered to buy “Jeff” a camera so he could take pictures of himself, and
attempted to solicit his address under the guise of sending him a birthday present. He told “Jeff”
he loved him and would come to visit him in Colorado if he had his address.
Following a four day bench trial, Petitioner was convicted of three offenses: attempted
receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2); possession of child
pornography in violation of 18 U.S.C. § 2252(a)(2), and attempted solicitation of a minor, using the
internet and telephone, to engage in sexually prohibited activity in violation of 18 U.S.C. § 2422(b).
He was sentenced to 325 months. He appealed his conviction and sentence. The Seventh Circuit
affirmed his conviction but vacated his sentence in 2003. The District Court resentenced Petitioner
to 300 months.
Under federal law, child enticement under 18 U.S.C. § 2422(b), prohibits using interstate
commerce to coerce a person under the age of eighteen to engage in any illegal “sexual activity” or
to attempt to arrange such an encounter. Congress, however, did not define “sexual activity” as it
is used in § 2422(b). On April 7, 2011, the Seventh Circuit decided in United States v. Taylor, 640
F.3d 255, 256-57 (7th Cir. 2011) that § 2422(b) only applies to defendants who engage or who
intend to engage in interpersonal physical contact with children. Id. at 259-60. The defendant in
Taylor argued he could not be charged under § 2422(b) because he never touched the child. Judge
Posner agreed with Taylor, and reversed his conviction finding he did not have physical contact with
the victim nor did he take actual steps toward engaging in physical contact with her.

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Petitioner filed a Motion to Vacate under 28 U.S.C. § 2255 on May 16, 2011. Two weeks
later, he filed a supplement to his Motion to assert his actual innocence in light of the Taylor
decision. He argued that his sexual chats, alone, no longer qualify as sexual activity under §
2422(b). The District Court for the Northern District of Indiana disagreed, finding in part, that
Petitioner was convicted of attempting to violate § 2422(b) and took a substantial step toward
committing the offense by repeatedly trying to get the victim’s address, even offering to send money
or gifts to get it, and indicating he would come to Colorado to meet with the victim. His Motion to
Vacate under §2255 was denied on November 22, 2013. He appealed that decision to the United
States Seventh Circuit Court of Appeals, the same court that issued the Taylor decision. The
Appellate Court denied his request for a certificate of appealability and dismissed his appeal. The
Supreme Court of the United States denied his Petition for a Writ of Certiorari on October 20, 2014.
II. Habeas Petition
Undeterred, Petitioner now files this Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2241 asserting the same claim. He contends the Seventh Circuit’s decision in Taylor redefined
the term sexual activity to require actual physical contact with the victim. He asks this Court to
vacate his conviction for violating § 2422(b) and order him to retried on the other two counts.
III. Standard of Review
Writs of habeas corpus “may be granted by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a).
Section 2241 “is an affirmative grant of power to federal courts to issue writs of habeas corpus to
prisoners being held ‘in violation of the Constitution or laws or treaties of the United States.’” Rice
v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting Section 2241(c)). Because Petitioner is

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appearing pro se, the allegations in his Petition must be construed in his favor, and his pleadings are
held to a less stringent standard than those prepared by counsel. Urbina v. Thoms, 270 F.3d 292,
295 (6th Cir. 2001). However, this Court may dismiss the Petition at any time, or make any such
disposition as law and justice require, if it determines the Petition fails to establish adequate grounds
for relief. Hilton v. Braunskill, 481 U.S. 770, 775 (1987); see also Allen v. Perini, 424 F.2d 134,
141 (6th Cir. 1970) (holding district courts have a duty to “screen out” petitions lacking merit on
their face under Section 2243).
Moreover, Petitions under 28 U.S.C. § 2241 may only be used by a federal prisoner seeking
to challenge the execution or manner in which his sentence is served. Capaldi v. Pontesso, 135 F.3d
1122, 1123 (6th Cir. 1998)(citing United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991)); Wright
v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977). Federal prisoners seeking to
challenge their convictions or imposition of their sentences must pursue relief under 28 U.S.C. §
2255. Cohen v. United States, 593 F.2d 766, 770 (6th Cir. 1979). The remedy afforded under §
2241 is not an additional, alternative, or supplemental remedy to that prescribed under § 2255. See
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Petitioner cannot raise claims in a § 2241
Petition when his attempts to obtain relief under §2255 for those claims was unsuccessful.
Section 2255 does contain a “safety valve” provision which permits a federal prisoner
challenge his conviction or the imposition of his sentence under 28 U.S.C. § 2241, if it appears that
the remedy afforded under § 2255 is “inadequate or ineffective to test the legality of his detention.”
United States v. Hayman, 342 U.S. 205, 223 (1952); In re Hanserd, 123 F.3d 922, 929 (6th Cir.
1997). The remedy under § 2255 is not inadequate or ineffective merely because an individual is
unable to obtain relief under that provision. See e.g., Charles v. Chandler, 180 F.3d 753, 756 (6th

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Cir. 1999)(per curiam). The § 2255 remedy is not considered inadequate or ineffective, moreover,
simply because § 2255 relief has already been denied, because the Petitioner is procedurally barred
from pursuing relief under § 2255, or because the Petitioner has been denied permission to file a
second or successive § 2255 Motion to Vacate. Id.
To fall within any arguable construction of the safety valve provision, a Petitioner must show
that an intervening change in the law establishes his actual innocence. United States v. Peterman,
249 F.3d 458, 462 (6th Cir. 2001). A valid assertion of actual innocence is more than a belated
declaration that the prisoner does not believe his sentence is valid. Actual innocence suggests an
intervening change in the law establishes a prisoner's actual innocence of a crime. See Martin v.
Perez, 319 F.3d 799, 804 (6th Cir. 2003); Peterman, 249 F.3d at 462. Secondly, “actual innocence
means factual innocence, rather than mere legal insufficiency.” Martin, 319 F.3d at 804 (quoting
Bousley v. United States, 523 U.S. 614, 623 (1998)). In other words, Petitioner must point to a
decision holding a substantive criminal statute no longer reaches certain conduct, i.e, that he stands
convicted of “an act that the law does not make criminal.” Bousely, 523 U.S. at 620 (quoting Davis
v. United States, 417 U.S. 333, 346 (1974)). See, e.g., Bailey v. United States, 516 U.S. 137
(prisoners convicted of “using” a firearm during a drug crime or violent crime found themselves
innocent when Supreme Court redefined “use” in a restrictive manner).
III. Analysis
Petitioner is clearly challenging the imposition of his sentence. He therefore cannot assert
these claims in a § 2241 petition unless he demonstrates that the “safety valve” provision of 28
U.S.C. § 2255 is applicable to his case. Petitioner asserts that a change in the interpretation of §
2422(b) in the Taylor decision issued after his conviction renders him actually innocent of one of

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the crimes for which he was convicted. While his claim could plausibly fit within the safety valve
provision if the Taylor decision had been issued after Petitioner sought and was denied relief under
§ 2255, that was not the case here. The Taylor decision was issued before Petitioner filed his § 2255
Motion to Vacate, and Petitioner added it to the grounds he asserted in his Motion. The District
Court for the Northern District of Indiana, and the Seventh Circuit Court of Appeals both considered
the claim on its merits in the course of that § 2255 Motion and denied him relief. Having received
a review of his claim on the merits under § 2255, Petitioner is not entitled to litigate the same claim
in a different court under § 2241 in the hope of obtaining a different result.
V. Conclusion
Accordingly, the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is denied
and this action is dismissed pursuant to 28 U.S.C. § 2243. Further, the Court CERTIFIES pursuant
to 28 U.S.C. §1915(a)(3) that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.

S/James G. Carr
JAMES G. CARR
UNITED STATES DISTRICT JUDGE

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