Clark v. Keyes

1

BRADLEY CLARK, Petitioner, v. WARDEN R.D. KEYES,^[1] Respondent.

No. 22-cv-1306-pp

United States District Court, E.D. Wisconsin

May 18, 2023

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. §2241 (DKT. NO. 1), DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY AND DISMISSING CASE WITH PREJUDICE

HON PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE

On November 3, 2022, the petitioner, who currently is incarcerated at Oxford Federal Correctional Institution and is representing himself, filed a petition for writ of habeas corpus under 28 U.S.C. §2241 challenging his federal conviction for violating 28 U.S.C §924(c)(1). Dkt. No. 1. This order denies the petition and dismisses the case.

I. Background

A. Underlying Case

The petitioner asserts that he is challenging his sentence in United States v. Clark, 3:07-cr-30112 (C.D. Ill.). Dkt. No. 1 at 1, 9. On November 7, 2007, the grand jury issued an indictment charging the petitioner with conspiracy to manufacture five or more grams of methamphetamine in violation of 21 U.S.C. §§846, 841(a)(1) and 841(b)(1)(B) (Count One); possession of a firearm in furtherance of and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A)(ii) (Count Two); and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§922(g)(1) and (2) (Count Three). Id., Dkt. No. 11. On July 28, 2008, the petitioner pled guilty to Counts One and Two. Id., Dkt. No. 26. On December 8, 2020, District Judge Jeanne E. Scott sentenced the petitioner to sixty months (five years) of imprisonment on Count One and 360 months of imprisonment on Count Two, to run consecutively to the sentence imposed on Count One; she imposed a sentence of five years of supervised release to follow the term of incarceration. Id., Dkt. No. 44. The court entered judgment on December 10, 2008. Id.

On January 7, 2015, the petitioner filed a motion for appointment of counsel to file a motion to reduce his sentence. Id., Dkt. No. 52. The court denied the motion on June 17, 2015 and entered its final finding that the petitioner was not eligible for a sentence reduction on July 22, 2015. Id., Minute Entries. On July 25, 2015, District Judge Sue. E. Myerscough denied the petitioner's motion for a sentence reduction under 18 U.S.C. §3582(c)(2). Id., Dkt. No. 54. The petitioner indicates that he never filed an appeal of, or a collateral attack on, his sentence. Dkt. No. 1 at 15.

B. The Petition

In response to the question, “What are you challenging in this petition?,” the petitioner marked the “Other” box, and stated, “Intervening change in law by the Supreme Court in which renders mandatory minimum illegal and charged with a non-existent federal crime.” Dkt. No. 1 at 1-2. He marked boxes indicating that he is not challenging the validity of his conviction or sentence as imposed and that he has not previously filed a 28 U.S.C. §2255 petition. Id. at 3. In the portion of the petition where he was asked to explain “why the remedy under 28 U.S.C. § 2255 is inadequate or ineffective to challenge your conviction or sentence,” the petitioner responded, “Due to the statute of limitations period under AEDPA, thus, as [the petitioner] is relying upon a statutory interpretation by the Supreme Court that was handed down in 2016 and defective indictment as Count Two fails to charge a federal crime.” Id. at 4.

The petitioner raises two grounds for relief. Ground One alleges that under Mathis v. United States, 579 U.S. 500 (2016), he is innocent of the offense charged in Count Two-a violation of §924(c)(1)(A)(ii)-“in the wake of the U.S. Supreme Court's Ruling in Mathis v. United States, 136 S.Ct. 2243 (2016).” Dkt. No. 1 at 9. The petitioner argues that 18 U.S.C. §924(c)(2) requires that the underlying offense be a “drug trafficking crime,” and he asserts that his conspiracy conviction (Count One) does not constitute drug trafficking. Id. at 13-14. In support of this argument, the petitioner cites Mathis, along with cases from the Fourth Circuit (United States v. Norman, 935 F.3d 232 (4th Cir. 2019) and the Tenth Circuit (United States v. Martinez-Cruz, 836 F.3d 1305, 1308-1314 (10th Cir. 2016). Id.

Ground Two alleges that Count Two is “fatally defective” because it charges a nonexistent offense in violation of the petitioner's Fifth and Sixth Amendment rights. Id. at 15. He asserts that Count Two was defective because it omitted the serial number, make and model of the firearm and because the Fifth, Sixth, Tenth and Eleventh Circuits “have held that Section 924(c), charges two separate offenses, thus, the intermixing of elements of both offenses renders it a nonexistent offense in which requires Count Two, Section 924(c), should be VACATED in the case herein.” Id. at 18.

The petitioner says that his §2241 petition is proper because a §2255 petition would be inadequate or ineffective to challenge his conviction and sentence, because he is relying on a 2016 Supreme Court case to challenge the “defective indictment” and the statute of limitations period under AEDPA (the Antiterrorism and Effective Death Penalty Act) has run out. Id. at 4. For relief, he asks the court to vacate his conviction and sentence as to Count Two and schedule a resentencing hearing. Id. at 21.

II. Analysis

A. Standard

Under Rule 1(b) of the Rules Governing Section 2254 Cases and Civil Local Rule 9(a)(2) (E.D. Wis.), the court applies the Rules Governing Section 2254 Cases to a petition for a writ of habeas corpus under 28 U.S.C. §2241. Chagala v. Beth, No. 15-CV-531, 2015 WL 2345614, at *1 (E.D. Wis. May 15, 2015). Those rules require the court to review, or “screen,” the petition. Rule 4 of the Rules Governing Section 2254 Cases states:

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

A court must allow a habeas petition to proceed unless it is clear that the petitioner is not entitled to relief in the district court. At the screening stage, the court expresses no view as to the merits of any of the petitioner's claims. Instead, the court considers whether the petitioner has stated cognizable grounds for federal habeas relief and whether the petitioner has exhausted his available remedies.

B. Analysis

1. Applicable Law

A person seeking to mount a collateral attack on his federal conviction and sentence must file in the district of conviction a motion to vacate, set aside or correct that sentence under 28 U.S.C. §2255; the statute allows a person serving a federal sentence to “move the court which imposed the sentence to vacate, set aside or correct the sentence.” Chazen, 938 F.3d at 856; 28 U.S.C. §2255(a). “In the great majority of cases,” §2255 is the “exclusive postconviction remedy for a federal prisoner.” Purkey v. United States, 964 F.3d 603, 611 (7th Cir. 2020).

Section 2255 has a strict, one-year statute of limitations that runs from one of four dates:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. §2255(f).

Generally, §2255 limits a petitioner to one opportunity for relief. Bourgeois v. Watson, 977 F.3d 620, 632 (7th Cir. 2020). There are two exceptions to that rule. The first is §2255(h), which authorizes a federal court of appeals to give the incarcerated person permission to file a second or successive motion if the second or successive motion contains “newly discovered evidence” providing innocence or identifies “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” Id. (quoting 28 U.S.C. §2255(h)). The second exception is §2255(e), more commonly known as the “savings clause.” Id. Under the savings clause, a habeas petition “shall not be entertained” if it appears that the petitioner “has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” Id. (quoting 28 U.S.C. §2255(e)).

2. Claims Unrelated to Mathis

The district court for the Central District of Illinois entered judgment against the petitioner in December 2008. It appears that he did not appeal that conviction, since he left that portion of the petition blank. Dkt. No. 1 at 2. He states that he did not file a §2255 petition asking the district court for the Central District of Illinois to vacate, set aside or correct the sentence. Id. at 3. The petitioner's conviction became final on December 8, 2008 and it has been far more than one year since that time; the petitioner filed this petition almost fourteen years after the conviction became final. That means that the one-year limitation period under §2255(f)(1) has expired for any claims the petitioner could have brought between December 8, 2008 and December 8, 2009....