Crowe v. Stacey Martin U.S. Prob. Officer

DAVID C. CROWE PETITIONER v. STACEY MARTIN U.S. Probation Officer RESPONDENT

CIVIL ACTION NO. 4:15-CV-122-CRS

CRIMINAL ACTION NO. 4:95-CR-13-CRS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT OWENSBORO

April 25, 2016

MEMORANDUM OPINION

This matter is before the court for consideration of the Findings of Fact, Conclusions of Law, and Recommendation of the United States Magistrate Judge (hereinafter, "Report") in this action brought under 28 U.S.C. § 2241, and objections filed thereto.

The petitioner, David C. Crowe, proceeding pro se, requests that this court vacate certain counts of conviction for money laundering, contending that, due to the United States Supreme Court decision in United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), he is actually innocent of those charges. The magistrate judge noted that both David and Martha Crowe, his wife, have argued for the same result under the Santos case.

On August 21, 1996, a jury convicted the defendants, David and Martha Crowe, and their company, Gold Unlimited, Inc., of mail fraud (counts one through seven), money laundering conspiracy (count fifteen), and money laundering (counts sixteen through twenty two), and it acquitted the defendants of the securities violations (counts eight through fourteen). United States v. Gold Unlimited, Inc., 177 F.3d 472, 477 (6^th Cir. 1999).

The defendants were sentenced, and David and Martha Crowe were released on bond pending their date for voluntary surrender to begin service of their sentences. They failed to surrender. Instead, they fled the country. They were re-arrested in July, 2001 and returned to Kentucky. They were indicted and subsequently pled guilty to a charge of failure to appear for which they were sentenced to serve additional time.

The proceedings against the Crowes concerning their failure to appear have no relevance to this habeas petition, except to the extent that the Crowes' decision to flee resulted in the 1997 dismissal of their direct appeals of their convictions under the fugitive entitlement doctrine. Id. at 478. By fleeing the jurisdiction, the Crowes forfeited their right to challenge any aspect of the trial proceedings on direct appeal. The Crowes' corporate entity, Gold Unlimited, pursued an appeal which was unsuccessful. This court thus cites to the Court of Appeals decision affirming the convictions.

This matter came before this court for consideration of the petition of Martha Crowe for a writ of habeas corpus pursuant to 28 U.S.C. § 2241¹ seeking to have her convictions for money laundering vacated under the authority of United States v. Santos, 553 U.S. 507 (2008).² In 2010, she filed the petition in the United States District Court for the Northern District of Texas,the district of her incarceration. While the matter remained pending, Crowe completed her term of imprisonment and was released from custody. The matter was then transferred to the Western District of Kentucky, "the convicting court, which maintains jurisdiction over [Crowe's] term of supervised release and in whose jurisdiction [Crowe] resides."³

Martha Crowe sought retransfer of her petition to the Texas court. The presiding judge, Joseph H. McKinley, Jr., denied the motion to re-transfer. He subsequently granted Crowe's motions for recusal and to vacate the denial of the motion for re-transfer. This matter was thereafter reassigned to the undersigned, and the motion for re-transfer was subsequently denied a second time.

The parties then filed supplemental memoranda addressing the relevant Sixth Circuit law relating to her petition. The matter was then submitted for decision.

This court exhaustively addressed the matter of whether there was a basis for vacating Martha Crowe's money laundering convictions, ultimately determining that there was not, and denied her petition for relief.⁴ This same issue is now raised by David Crowe in the present petition. The court referred David Crowe's § 2241 petition to the magistrate judge for review and for preparation of findings of fact, conclusions of law, and recommendation as to its disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge issued a thorough and articulate Report, recommending that the petition be denied.⁵

At the outset, a brief recitation of the history of David Crowe's collateral challenges to his conviction is in order. The magistrate judge has set out most of the pertinent events in the timeline in his Report.

David Crowe filed a § 2255 petition for writ of habeas corpus and an amended petition in this court which were denied. He then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Southern District of Georgia in August of 2010, the jurisdiction of his incarceration. He argued in that petition that he satisfied the "savings clause" of § 2255(e) which allows a person to challenge the legality of a conviction or sentence under § 2241. The Southern District of Georgia found his petition wanting, finding that he failed to show, under Skilling, Black, or Santos,⁶ that he was "convicted of a non-existent offense." Thus he did not satisfy the requirements of § 2255's "savings clause." With regard to application of the Santos case, the court stated⁷ that

...Crowe's reliance on United States v. Santos, 553 U.S. 507 (2008) is misplaced. The Eleventh Circuit Court of Appeals has determined that the Santos decision is of "limited precedential value" and its holding is limited to "the gross receipts of an unlicensed gambling operation...As Crowe was convicted of money laundering and conspiracy to money launder the proceeds of an illegal pyramid scheme, Santos does not reveal Crowe was convicted of a non-existent offense.

Here, Crowe asserts the same argument. He argues to this court in the present § 2241 petition that in light of Santos, he can demonstrate his "actual innocence," that is, factual innocence of the money laundering counts, thus meeting the requirements for application of the "savings clause," as articulated in this Circuit. In Wooten v. Cauley, 677 F.3d 303, 306-307 (6^thCir. 2012), the Sixth Circuit stated that a petitioner must demonstrate "actual innocence" which is not cognizable in a second or successive § 2255 motion in order to invoke the "savings clause." The Court of Appeals noted that "actual innocence" means factual innocence, not mere legal insufficiency, and indicated that one way to establish factual innocence would be to show an intervening change in the law that establishes the petitioner's actual innocence. Wooten, 677 F.3d at 307-308. As he did in the Southern District of Georgia, Crowe focuses the court on the purported effect of the Santos decision on the money laundering counts of conviction to justify his claim for relief under § 2241.

After the Southern District of Georgia found that Skilling, Black, and Santos failed to support his contention that he satisfied the "savings clause" of § 2255(e) to seek relief under § 2241, Crowe appealed to the United States Court of Appeals for the Eleventh Circuit. He later abandoned that appeal. Thereafter, when Martha Crowe had some success with her § 2241 petition, albeit temporary success, David Crowe filed a § 2255 motion in the Western District of Kentucky seeking relief similar to that of his wife. The motion was transferred to the United States Court of Appeals for the Sixth Circuit for permission to file a second or successive petition. The Sixth Circuit denied authorization to file a second or successive § 2255, noting among other things, that "there is no authority for the proposition that a vacated judgment in a co-defendant's case provides stand-alone grounds to vacate judgments of other co-defendants." In deciding the issue, the Court of Appeals found that David Crowe was necessarily relying on Santos, as Santos formed the basis for the district court's ruling as to Martha Crowe's petition. The Court of Appeals concluded that Santos did not justify authorization to file a second orsuccessive § 2255 petition, and stated that it "express[ed] no view on Crowe's § 2241 motion in the Southern District of Georgia."⁸

Again unsuccessful, David Crowe sought to alter, amend or vacate the Georgia judgment denying his § 2241 there on the ground that the Western District of Kentucky's ruling on Martha Crowe's petition constituted an intervening decision entitling him to similar relief. His motion was denied by the Southern District of Georgia which stated that Crowe had already been made aware that Santos did not provide him with his requested relief, and that any contrary finding with respect to Martha Crowe in the Western District of Kentucky was not binding authority for the Southern District of Georgia.⁹

Before the Southern District of Georgia had ruled on Crowe's rule 60(b)(6) motion to alter, amend, or vacate, Crowe filed a motion to stay or transfer the case to the Western District of Kentucky, urging that transfer was warranted because Martha Crowe had received different treatment in the Western District of Kentucky.¹⁰ That motion to stay or transfer was denied by the Southern District of Georgia. Final judgment denying David Crowe relief and dismissing his § 2241 petition was entered by the Southern District of Georgia on June 2, 2014.

On August 25, 2014, this court entered a Superseding Memorandum Opinion, Order, and Judgment denying Martha Crowe relief and dismissing her § 2241 petition here in the Western District of Kentucky. In September 2015, David Crowe filed the present § 2241 petition in this district urging identical arguments which were (1) made by his wife and ultimately rejected by this court over one year ago and (2) made in his prior § 2241 and rejected by the Southern District of Georgia.

David Crowe has sought § 2241 relief in various forums and under various procedures. The United States noted in its response to Crowe's petition that a prior § 2241 petition...