Meling, Joseph v. Williams II, Louis

Filing 7

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 5 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOSEPH EARL MELING
Petitioner,

OPINION & ORDER

v.
17-cv-53-jdp
LOUIS WILLIAMS II,
Respondent.
Pro se petitioner Joseph Meling, a prisoner incarcerated at the Federal Correctional
Institution in Oxford, Wisconsin, seeks a writ of habeas corpus under 28 U.S.C. § 2241,
challenging his sentence from the United States District Court for the Western District of
Washington. Meling contends that the Supreme Court’s decision in Jones v. United States, 526
U.S. 227 (1999) renders his sentence unlawful because a jury did not find the facts that the
sentencing judge used to enhance his sentence.
The petition is before the court for preliminary review under Rule 4 of the Rules
Governing Section 2254 Cases, which also applies to Section 2241 petitions. See Rule 1(b),
Rules Governing Section 2254 Cases; 28 U.S.C. § 2243. Under Rule 4, a district court will
dismiss the petition only if it plainly appears that the petitioner is not entitled to relief. For the
reasons discussed below, I will dismiss Meling’s petition and close the case.

BACKGROUND
I draw the following background from Meling’s petition, his exhibits, and court records.
Dkt. 1; Dkt. 2-1 through Dkt. 2-13; United States v. Meling, Case No. 92-cr-395 (W.D. Wash.),
aff’d, 47 F.3d 1546 (9th Cir. 1995).

Joseph Meling was an insurance salesman when he was accused for attempting to kill
his wife. Here is what the government presented. Meling got a $700,000 life-insurance policy
on his wife. The day after the policy was effective, he laced a Sudafed pill with cyanide and fed
it to her. She survived, despite her serious injuries. Meling then worried that he might get
caught, so he schemed to divert police investigation. He laced five more packages of Sudafed
with cyanide and placed them on the shelves at local drug stores. Two people took the
adulterated Sudafed pills and died.
After a five-week trial, a jury found Meling guilty on 11 counts: 1 count of product
tampering that resulted in great bodily injury; 2 counts of product tampering that resulted in
death; 3 counts of product tampering; 2 counts of perjury; and 3 counts of mail fraud. The
district court sentenced Meling on June 8, 1993. Meling is now serving a term of life in prison.
A. Meling’s sentence
Meling challenges his sentence for the two counts of product tampering resulting in
death. Under the sentencing guidelines, the base offense level for those two convictions
depended on whether Meling had caused the victims’ deaths “intentionally or knowingly.”
USSG § 2N1.1. The sentencing judge concluded that Meling had intentionally or knowingly
caused the deaths of his victims, so following the guidelines she cross-referenced § 2A1.1 (the
guideline for first-degree murder) instead of § 2A1.2 (the guideline for second-degree murder).
The resulting base offense level yielded a guideline range of life. Because the guidelines were
mandatory at the time (in 1993), the judge sentenced Meling to life in prison without the
possibility of parole.1 Meling appealed to the Ninth Circuit, which affirmed his conviction and
sentence. The Supreme Court denied Meling’s petition for certiorari.

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The judge also sentenced Meling for the other offenses. The terms of imprisonment ranged

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B. Meling’s prior habeas petitions
Meling has filed numerous habeas petitions. In 1999, Meling filed a petition under 28
U.S.C. § 2255, but the district court denied the petition as untimely. Meling v. United States,
Case No. 99-cv-00279 (W.D. Wash. Aug. 30, 1999). Meling then filed another § 2255 petition
in 2002, labeled “NOT a Second or Successive § 2255,” but the district court disagreed with
the label and transferred the case to the Ninth Circuit for authorization to file a successive
petition under 28 U.S.C. § 2255(h), which was denied. Meling v. United States, Case No. 0273195 (9th Cir. July 30, 2003). In 2011, Meling filed a Rule 60(b) motion, but the court
construed it as another successive § 2255 petition and transferred to the Ninth Circuit again
for authorization. Meling v. United States, Case No. 11-cv-169 (W.D. Wash. Feb. 4, 2011).
Meling voluntarily dismissed that case. Meling v. United States, Case No. 11-70419 (9th Cir.
April 14, 2011). In 2014, Meling filed a motion for authorization from the Ninth Circuit to
file a successive § 2255 petition based on the Supreme Court’s decisions in Alleyne v. United
States, 133 S. Ct. 2151 (2013) and Burrage v. United States, 134 S. Ct. 881 (2014). But that
motion, too, was denied. Meling v. United States, Case No. 14-71568 (9th Cir. Feb. 27, 2015).
A few months later, in September 2015, Meling filed a § 2241 petition with this court,
relying on Alleyne again. In particular, he raised the same argument he raises now: that the jury,
not the sentencing judge, should have found that he “intentionally or knowingly” killed his
two victims. I denied Meling’s petition at screening. Meling v. Ward, Case No. 15-cv-604-jd,
2016 WL 1611392, at *2 (W.D. Wis. Apr. 21, 2016). I explained that Meling could not
challenge his sentence under § 2241 because Alleyne was not a statutory-interpretation case and

from 5 years to 20 years for each offense, to run concurrently to Meling’s life sentence.

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it did not apply retroactively. Id. Meling appealed, and the Seventh Circuit affirmed. Meling v.
Ward, Case No. 16-2008 (7th Cir. Oct. 18, 2016).

ANALYSIS
Meling’s new § 2241 petition makes essentially the same argument as his last petition,
although it is based this time on the Supreme Court’s decision in Jones v. United States. In Jones,
the Supreme Court held that the “serious bodily injury” requirement under the carjacking
statute, 18 U.S.C. § 2119, is an element of the offense to be determined by the jury, not just
a sentencing consideration. 526 U.S. at 232. Meling contends that under Jones, the jury, not
the sentencing judge, was to decide whether Meling “intentionally or knowingly” caused the
deaths of the two victims—which is the same argument he raised in his previous § 2241 petition
based on Alleyne. But Jones, like Alleyne, does not apply retroactively. Meling therefore may not
proceed under § 2241 relying on Jones.
To collaterally attack a sentence, a federal prisoner must ordinarily file a petition under
§ 2255. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). In cases where the prisoner has
already filed a § 2255 petition, the prisoner must obtain certification from the appropriate
court of appeals before filing a second or successive petition under § 2255. 28 U.S.C.
§ 2255(h). A § 2241 petition, on the other hand, generally cannot invalidate a sentence because
§ 2241 is for sentence execution—for example, parole administration, good time credits, prison
transfers, etc. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Brian R. Means,
Federal Habeas Manual § 11:17 (2016). But in rare cases, a prisoner can challenge his sentence
with a § 2241 petition, instead of a § 2255 petition, through the so-called savings clause
contained in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2255(e). See In re

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Davenport, 147 F.3d 605, 608-12 (7th Cir. 1998) (discussing the savings clause’s purpose and
development of case law).
To proceed under § 2241 by invoking the savings clause, a federal prisoner must
demonstrate that “his section 2255 remedy is ‘inadequate or ineffective to test the legality of
his detention.’” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012) (quoting 28 U.S.C. §
2255(e)). To show that his § 2255 remedy is “inadequate or ineffective,” a federal prisoner
must satisfy three conditions. First, the prisoner must rely on a statutory-interpretation case—
rather than on a constitutional case—because § 2255 offers relief to prisoners who rely on
constitutional cases. Second, the prisoner must rely on a retroactive decision that he could not
have invoked in his first § 2255 motion. Third, the sentence enhancement must have been a
grave enough error to be deemed a miscarriage of justice. Light v. Caraway, 761 F.3d 809, 812
(7th Cir. 2014); In re Davenport, 147 F.3d at 611-12.
Here, Meling cannot satisfy the second condition because Jones does not apply
retroactively. Jones is one of several cases where the Supreme Court has explained that the jury,
not the judge, should determine the facts that lead to enhanced sentencing. See Crayton v.
United States, 799 F.3d 623, 626-28 (7th Cir. 2015) (Williams, J., concurring) (discussing
development of case law). This line of cases, so-called Apprendi cases, do not apply
retroactively.2 Meling therefore cannot proceed under § 2241 because he has not demonstrated
that his remedy under § 2255 is inadequate or ineffective.

See Curtis v. United States, 294 F.3d 841, 842 (7th Cir. 2002); Vieux v. Warden., 616 F. App’x
891, 897 (11th Cir. 2015) (“Jones is merely a specific application to the federal carjacking
statute of the general rule announced one year later in Apprendi v. New Jersey [530 U.S. 466
(2000)]. . . . Because the Apprendi rule does not apply retroactively to cases on collateral review,
neither does Jones, a decision applying that rule.”); Harley v. Revell, Case No. 06-cv-697, 2006
WL 3183285, at *2 (S.D. Ill. Nov. 1, 2006) (rejecting the petitioner’s argument that Jones
applies retroactively because “[i]n this circuit . . . decisions in the Apprendi sequence do not
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ORDER
IT IS ORDERED that:
1. Petitioner Joseph Meling’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2241, Dkt. 1, is DENIED.
2. The clerk of court is directed to close this case.
Entered May 11, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

apply retroactively on collateral review.”).

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