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KING v. U.S.

United States District Court, Northern District of Illinois, Eastern Division


March 13, 2003

DENNIS KING, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Marvin E. Aspen, United States District Judge.

MEMORANDUM OPINION AND ORDER

Dennis King has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, we deny King's motion.

I. BACKGROUND

On May 12, 1994, King was convicted of six counts of using facilities in interstate commerce with the intent that a murder be committed in violation of 18 U.S.C. § 1958. His conviction was affirmed by the Seventh Circuit on direct appeal. See United States v. King, 75 F.3d 1217 (7th Cir. 1996). In February 1997, King filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his motion, King made 22 claims regarding the ineffective assistance purportedly rendered by both his trial and appellate attorneys. On April 29, 1997, this Court denied King's motion in a written memorandum and opinion. See United States v. King, 1997 WL 223057 (N.D.Ill. 1997). On April 2, 1998, we declined to issue a certificate of appealability, a decision which the Seventh Circuit upheld on April 27, 1998. In its order the Seventh Circuit also denied King's motion for the preservation of certain tape recordings that he was seeking to obtain from the M.C.C.

In 2002, five years after this Court denied his request for post-conviction relief, King filed a 28 U.S.C. § 2241 petition in the Eastern District of Kentucky in which he raised 22 claims. The district includes the Federal Medical Center in Lexington where King is currently incarcerated. The district court dismissed King's petition. King appealed that dismissal to the Sixth Circuit. On December 11, 2002, the Sixth Circuit affirmed the district court's dismissal of King's § 2241 petition. See King v. Thomas, 2002 WL 31780932 (6th Cir. 2002). The Sixth Circuit explained that a § 2241 petition is to be used only if a petitioner can "[e]stablish that § 2255 is inadequate or ineffective to test the legality of his detention." Id. The court stated that "[t]he leading; and arguably only, example of an `inadequate or ineffective' remedy under § 2255 is the case of a prisoner who can show that an intervening change in the law establishes his actual innocence" Id. (citation omitted). The Sixth Circuit found that King's "actual innocence" claim merely "rehash[ed]" certain arguments King previously made to this Court. Id. On December 30, 2002, King filed his current motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 with this Court.

II. DISCUSSION

King's latest petition for relief under 28 U.S.C. § 2255 contains the following wide-ranging and intertwined claims: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) failure of appellate counsel to obtain certain tape recordings that prove King's innocence; and (4) illegal imposition of sentence. We specifically rejected each of those claims on the merits in our opinion denying King's first motion to vacate, set aside, or correct his sentence. The Antiterrorism and Effective Death Penalty Act ("AEDPA") bars an individual from filing a second or successive habeas petition without obtaining leave to do so from the circuit court. See 28 U.S.C. § 2244 (b)(3), 2255 ¶ 8. It is clear that if first petition was decided and dismissed on the merits, any later petition is "successive." See, e.g. Renton v. Washington, 106 F.3d 162, 164 (7th Cir. 2000). In light of our denial of King's first petition on the merits, we find King's current petition to be successive. Because King has failed to obtain the necessary certification in order to have this Court hear his petition, we are without jurisdiction to rule the matter.

III. CONCLUSION

For the foregoing reasons, we deny King's motion to vacate, set aside, or correct his sentence. It is so ordered.

JUDGMENT IN A CIVIL CASE

IT IS HEREBY ORDERED AND ADJUDGED that Because King has failed to obtain the necessary certification order to have this Court his petition, we are without jurisdiction to rule on the matter. King's motion to vacate, set aside, or correct his sentence is denied.

20030313

© 1992-2003 VersusLaw Inc.



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