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Rogers v. Hollingsworth

July 2, 2010

KENNETH ROGERS, PETITIONER,
v.
LISA J. HOLLINGSWORTH, RESPONDENT.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER

REAGAN, District Judge

Petitioner brings this pro se habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge a mandatory consecutive two-year sentence imposed on him by the Honorable G. Patrick Murphy, United States District Judge for the Southern District of Illinois, after being found guilty of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). United States v. Rogers, Case No. 3:06-cr-30065 (S.D. Ill.).

Rule 4 of the Rules Governing § 2254 Cases in United States District Courts provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases. After carefully reviewing the petition in the present case, the Court concludes that Petitioner is not entitled to § 2241 relief, but may be entitled to relief pursuant to 28 U.S.C. § 2255. Therefore, this Court intends to construe the action as seeking relief pursuant to § 2255. Before re-characterizing this action, however, Petitioner will be afforded an opportunity to withdraw it or to amend his pleading.

BACKGROUND

Petitioner was charged by means of an information*fn1 with (1) making counterfeit United States currency in violation of 18 U.S.C. § 471; (2) bank fraud in violation of 18 U.S.C. § 1344; (3) aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1); and (4) forfeiture of counterfeit property, 18 U.S.C. § 492. United States v. Rogers, Case No. 3:06-cr-30065 (S.D. Ill. Information filed May 4, 2006). With regard to Count 3 (aggravated identity theft), the information specifically charged that Petitioner "used a home computer . . . to create unauthorized payroll [checks] purporting to be issued by Grossman Iron and Steele [sic]." Id. (Information filed May 4, 2006). The information further charged that "[o]n these fraudulent payroll checks, . . . [Petitioner], included personal identification numbers and financial institution account and routing numbers." Id.

Pursuant to a written plea agreement, Petitioner pleaded guilty to all charges. Id. (Defendant's Agreement to Plead Guilty, filed May 4, 2006). In addition to his plea agreement, Petitioner signed a written stipulation of facts. In the stipulation of facts, Petitioner admitted using: a home computer . . . to create unauthorized payroll checks purporting to be issued by Grossman Iron and Steele [sic]. These checks purported to be drawn from Grossman Iron and Steele's [sic] account and contained personal identification numbers, financial institution account and routing numbers . . . .

Id. (Stipulation of Facts filed May 4, 2006).

On September 18, 2006,Judge Murphy sentenced Petitioner to "46 MONTHS. This term shall consist of 46 mos. on counts 1 & 2 said terms to run concurrent with each other, and 24 months on Ct. 3, to run consecutive to the term imposed on Counts 1 & 2. Id. (Judgment filed Sept. 20, 2006) (emphasis original).

The written plea agreement provided that "the Defendant knowingly and voluntarily waives his right to contest any aspect of his conviction and sentence that could be contested under Title 18 or Title 28 [United States Code], or under any other provision of federal law." Id. (Defendant's Agreement to Plead Guilty). From this waiver of his right to pursue either a direct appeal or collateral review, Petitioner carved out three exceptions. First, " if the sentence imposed [was] in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater), the Defendant reserve[d] the right to appeal the reasonableness of the sentence." Id.

In addition, the written plea agreement set out the following two exceptions:

Defendant's waiver of his right to appeal or bring collateral challenges shall not apply to: 1) any subsequent change in the interpretation of the law by the United States Supreme Court or the United States Court of Appeals for the Seventh Circuit, which is declared retroactive by those Courts, and which renders the defendant actually innocent of the charges covered herein, and 2) appeals based upon Sentencing Guideline amendments which are made retroactive by the United States Sentencing Commission (see U.S.S.G. § 1B1.10).

Id.

True to his word, Petitioner did not seek direct review of his convictions and/or sentences. A review of this Court's records also indicates that Petitioner has not previously ...


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