Storm v. United States of America et al

Filing 2

ORDER signed by Judge Lynn Adelman on 5/5/14 that the government file a response to the petition on or before June 5, 2014. (cc: all counsel, via USPS to petitioner, copy to US Attorney for service on respondents)(dm) Modified on 5/5/2014 (vkb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DANIEL STORM
Petitioner,
v.

Case No. 14-C-0405

UNITED STATES OF AMERICA and
UNITED STATES PAROLE COMMISSION,
Respondents.

ORDER
Pursuant to 28 U.S.C. §§ 2241 and/or 1651, petitioner Daniel Storm petitions for relief
from a sentence imposed in the North District of Illinois in 1987. In that case, following his
conviction on drug charges, the court sentenced petitioner to a total of 10 years in prison, 5
years probation consecutive to the prison terms, and a special parole term of life. United
States v. Rollins, 862 F.2d 1282, 1286-87 (7th Cir. 1989).
In 1989, petitioner was convicted of tax evasion and dealing firearms without a license
in this district, receiving two consecutive five-year prison terms. United States v. Slaughter, 900
F.2d 1119, 1120 (7th Cir. 1990). In 2004, he was convicted of conspiracy to distribute
marijuana in this district, receiving a sentence of 79 months’ imprisonment followed by five
years of supervised release. (Case No. 03-CR-143, R. 79.) He completed that prison
sentence in 2009,1 but in 2012 the court revoked his supervised release and imposed a prison
sentence of 18 months with no supervised release to follow. (Case No. 03-CR-143, R. 152.)

1

In 2010, petitioner filed a § 2241 petition challenging the government’s attempts to
collect on a fine imposed in the 1987 case. In response, the government indicated that it had
closed its collection file, mooting the case.

Also in 2012, petitioner filed a Fed. R. Crim. P. 35(a) motion in the Northern District of
Illinois challenging the 1987 sentence. Specifically, he argued that the term of probation he
received in that case had expired and could no longer enforced, and that the special parole
term of life was not statutorily authorized for his offense. Under the version of Rule 35(a)
applicable to petitioner’s case, an “illegal sentence” may be corrected at any time, see United
States v. Boyd, 591 F.3d 953, 956 (7th Cir. 2010), but the court denied petitioner’s claims on
the merits. United States v. Storm, No. 12-C-1744 (N.D. Ill. Nov. 30, 2012) (Memorandum
Opinion and Order).
In the instant application, petitioner indicates that he remains under the supervision of
the Parole Commission in this district pursuant to the 1987 sentence. He argues that (1) the
imposition of the special parole term was unlawful; (2) the Commission failed to give him a
release date, as required by the Sentencing Reform Act; (3) the Commission improperly
imposed a new financial monitoring condition; (4) the special parole term violates the Fifth
Amendment, as it was not plead in the indictment; (5) the period of probation imposed in the
1987 case has expired and cannot be enforced; and (6) he received ineffective assistance of
counsel in the 1987 case.
Section 2241 allows a defendant to challenge the execution of his sentence, including
the fact or duration of confinement, in the district in which he is confined; challenges to the
validity of the underlying sentence, on the other hand, generally must be brought in the district
of conviction under 28 U.S.C. § 2255. See, e.g., Hill v. Werlinger, 695 F.3d 644, 647 (7th Cir.
2012); Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003); Walker v. O’Brien, 216 F.3d 626,
629 (7th Cir. 2000); Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998). In the parole
context, the Seventh Circuit has held that § 2241 may be used to challenge the Commission’s
2

improper refusal to terminate supervision, Valona, 138 F.3d at 695, but not to challenge a
sentencing court’s parole determination, Longbehn v. United States, 169 F.3d 1082, 1083 (7th
Cir. 1999).
Petitioner’s first, fourth, and sixth claims appear to challenge the validity of the
underlying sentence, rather than its execution.2

However, because such claims may

sometimes be brought under § 2241, see 28 U.S.C. § 2255(e), and because the other claims
appear related sentence execution, I will direct the government to respond to the petition.3
THEREFORE, IT IS ORDERED that the government file a response on or before June
5, 2014.
Dated at Milwaukee, Wisconsin, this 5th day of May, 2014.
/s Lynn Adelman
________________________________________
LYNN ADELMAN
District Judge

2

The first and fifth claims also appear to duplicate the contentions rejected in the 2012
Rule 35 proceeding in the Northern District of Illinois.
3

Petitioner also cites § 1651, the All Writs Act, which allows courts to grant writs of error
coram nobis to defendants no longer in custody. See Chaidez v. United States, 655 F.3d 684,
687 (7th Cir. 2011), aff’d, 133 S. Ct. 1103 (2013). However, it appears that petitioner remains
in custody for purposes of § 2241. See Valona, 138 F.3d at 695 (“Parole is a form of ‘custody’,
so it is proper to use § 2241 to contest its continuation[.]”).
3