Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harvey v. Sherrod

July 27, 2009

DERRICK J. HARVEY, PETITIONER,
v.
A.W. SHERROD, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge

ORDER

INTRODUCTION

Before the Court is a Report and Recommendations ("R&R") (Doc. 18), issued pursuant to 28 U.S.C. § 636(b)(1)(B) by Magistrate Judge Frazier. In the R&R, Magistrate Frazier recommends dismissing Petitioner Derrick J. Harvey's ("Harvey") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Docs. 1 & 7). Specifically, the conclusion of the R & R is that the petition should be dismissed, with prejudice, because it is barred by the provisions of 28 U.S.C. § 2255. That view is shared by the Respondent (Doc. 13).

The R&R was sent to the parties, with a notice informing them of their right to appeal by way of filing objections within ten days of service of the R&R. In accordance with the notice, Harvey filed timely objections to the R&R (Doc. 19). Because timely objections have been filed, this Court must undertake de novo review of the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which specific objection has been made. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no objections have been made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings. For the reasons discussed herein, the Court adopts the findings and recommendations of the R & R.

BACKGROUND

Petitioner Harvey's post-conviction challenges to his sentence go back nearly a decade. In September 1999, he was sentenced in the United States District Court for the Eastern District of Missouri (Cause No. 4:99-CR-0081-CAS) after pleading guilty to one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a) and one count of using or carrying a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. 924(c). The court sentenced Harvey as a "career offender" pursuant to section 4B1.1 of the United States Sentencing Guidelines. Harvey was sentenced to consecutive terms of imprisonment of 210 months on the drug possession charge and sixty months on the firearm charge.

A. Direct Appeal

Harvey appealed his sentence. On appeal he argued that the District Court plainly erred by classifying him as a career offender pursuant to U.S.S.G. § 4B1.1. Specifically, Harvey argued that his prior Missouri conviction for manslaughter was not a crime of violence for purposes of § 4B1.1 because the conviction was purportedly based upon "negligent" conduct. The 8th Circuit rejected Harvey's claims and affirmed his conviction and sentence by concluding that manslaughter does count as a crime of violence for purposes of U.S.S.G § 4B1.1. (United States v. Derek Harvey, 242 F.3d 377, 2000 WL 1694069 at *1 (99-3699 EMSL, Nov. 14, 2000).*fn1

B. Motion to Vacate Pursuant to § 2255

In 2001, Harvey filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. His argument was, again, that the "career offender" status was inapplicable to him because his prior manslaughter conviction was not a crime of violence. The sentencing court denied the Motion, finding that Harvey's challenge was foreclosed by the 8th Circuit's decision on direct appeal. (No. 4: 01-CV-1824-CAS). Harvey did not appeal the Eastern District's denial of his motion.

C. Motion Pursuant to § 2241

Harvey next filed a motion in the Eastern District of Missouri pursuant to 28 U.S.C. § 2241. This time he argued that his prior conviction was not a crime of violence based on the United States Supreme Court's decision in Leocal v. Aschcroft, 125 S.Ct. 366 (2004), which concerned the parameters of a "crime of violence" for purposes of 18 U.S.C. § 16. Harvey's petition was rejected pursuant to 28 U.S.C. § 2255 because he failed to demonstrate that § 2255 was "inadequate or ineffective" to challenge his sentence. Harvey v. McFadden, No. 4:05-CV-1383-CAS.

D. First Request for Permission to File a Successive Petition

In November 2005, Harvey sought leave from the 8th Circuit to file a successive motion pursuant to § 2255. In support of that application, Harvey again argued that Leocal v. Ashcroft, 125 S.Ct. 366 (2004) controlled and required that his conviction for manslaughter no longer be deemed a crime of violence for purposes U.S.S.G. § 4B1.1. The 8th ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.