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Bryan Lee Simpson, # 07232-030 v. James Cross

May 16, 2013

BRYAN LEE SIMPSON, # 07232-030, PETITIONER,
v.
JAMES CROSS, RESPONDENT.



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

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner's "Resubmission of Previously Filed § 2241 Motion Based on Newly Enacted Law," filed January 11, 2013 (Doc. 28). The Court has construed this pleading as a motion for reconsideration of its previous order dismissing the original § 2241 petition with prejudice (Doc. 6, dated Feb. 3, 2011). Petitioner is confined at the Greenville Federal Correctional Institution ("Greenville").

The substance of petitioner's § 2241 claim is as follows. He pled guilty to being a felon in possession of a firearm, and was sentenced on July 12, 2005, to 180 months in prison. United States v. Simpson, Case No. 04-cr-088 (S.D. Iowa, Doc. 48). His sentence was enhanced (to a mandatory minimum of 180 months) under the Armed Career Criminal Act (18 U.S.C. § 924(e)) when the trial court found, over petitioner's objection, that his Iowa conviction for third degree burglary qualified as a third predicate violent felony (Doc. 28, p. 5). Without this sentence enhancement, his sentencing range would have been between 77 and 96 months. Id.

Subsequent Supreme Court decisions have significantly altered the application of the Armed Career Criminal Act ("ACCA"). See Chambers v. United States, 555 U.S. 122 (2009); Begay v. United States, 533 U.S. 137, 142 (2008) (to determine whether a given offense is a "violent felony" within the meaning of the ACCA, a sentencing court must analyze the elements of the offense to determine if it is similar in nature to the offenses enumerated in the ACCA; offense of driving under the influence of alcohol is not a "violent felony"). In the Seventh Circuit, the new rule in Begay was held to apply retroactively to cases on collateral review. Welch v. United States, 604 F.3d 408 (7th Cir. 2010). More recently, the circuit extended the application of this rule in a collateral attack on a sentence, where the defendant had been subjected to an increased Sentencing Guidelines range based on a pre-Begay determination that his escape convictions were "crimes of violence." Narvaez v. United States, 674 F.3d 621, 628-29 (7th Cir. 2011).

Based on these decisions, petitioner argues that he never should have been classified as an armed career criminal, because his Iowa conviction for "burglary in the third degree" was not a violent felony (Doc. 28, p. 6-7). Iowa law defined his crime as the burglary of an unoccupied motor vehicle, which is an aggravated misdemeanor for a first offense, but is enhanced to a felony for a second or subsequent conviction. Because this crime, by definition, did not involve any actual or potential use of force against a person, he argues it could not have posed a risk of injury to another, and should not have been considered a "violent felony" such as to enhance his conviction or sentence.

PROCEDURAL HISTORY

Petitioner appealed his 2005 conviction and sentence, but the judgment was affirmed on May 26, 2006 (Doc. 59 in criminal case). He then brought an unsuccessful challenge under 28 U.S.C. § 2255; the district court's judgment in that action was affirmed by the United States Court of Appeals, Eighth Circuit, on April 25, 2007. Simpson v. United States, Case No. 06-cv-530 (S.D. Iowa). The Begay opinion was issued on April 16, 2008, followed by the Seventh Circuit's ruling in Welch on May 4, 2010.

Petitioner filed the instant action seeking relief pursuant to 28 U.S.C. § 2241 on October 22, 2010. This Court dismissed the habeas petition with prejudice on February 3, 2011 (Doc. 6), reasoning that because petitioner was not claiming innocence of the felon-in-possession conviction, he was merely attacking his sentence. Under this Court's interpretation of the law at that time, this meant that his claim should have been brought under § 2255, and he was foreclosed from any relief under § 2241.

Petitioner timely appealed the judgment dismissing this habeas case, but his appeal was ultimately dismissed for non-payment of the filing fee (Doc. 20). This Court granted his motion for leave to proceed on appeal in forma pauperis ("IFP") on August 16, 2011, directing petitioner to make an "initial partial filing fee" payment of $49.31 (Doc. 19).*fn1 He was also ordered to sign and return the Consent Form for In Forma Pauperis Proceedings within 15 days,*fn2 after which the Clerk of Court would submit that form and the payment order to Greenville officials. The order warned petitioner that if he failed to provide the Bureau of Prisons with authorization to deduct payments from his account, his case could be dismissed. Petitioner never returned the consent form to the Court. Consequently, the IFP payment order was never sent to Greenville, and no funds were deducted from petitioner's prison account to pay the appeal fee.

When no filing fee payment was received, on September 23, 2011, the Seventh Circuit ordered petitioner to show cause as to why the appeal should not be dismissed for failure to pay (Doc. 6 in Seventh Circuit Appeal No. 11-2663). Petitioner did not respond to the show cause order, and on October 13, 2011, the Seventh Circuit dismissed his appeal (Doc. 20).

After termination of the appeal, this Court on January 18, 2012, entered a modified order for payment of the appellate fee, which was forwarded to Greenville (Doc. 21). The Greenville trust fund officer sent the initial payment of $14.42 on January 31, 2012. Four more monthly payments were deducted from petitioner's prison account, and the $49.31 appellate fee was paid in full as of June 12, 2012.

Meanwhile, petitioner filed a motion on March 28, 2012, to proceed with a late appeal (Doc. 23). This motion was written as if petitioner intended it to be filed with the appellate court, yet he filed it only in this District Court. He argued that as a habeas petitioner, he should not have been required to pay any appellate filing fee at all. The undersigned Judge denied that motion on January 11, 2013, noting that this Court is without jurisdiction to allow the appeal to proceed (Doc. 27). Reinstatement or reopening of an appeal can only be authorized by the Court of Appeals, and petitioner was admonished to direct a motion for reinstatement of the appeal to that court. Coincidentally, petitioner resubmitted the instant § 2241 motion on the same date (January 11, 2013) this Court denied his motion for late appeal. A review of the electronic docket of the appellate court indicates that to date, petitioner has not submitted any motion to the Seventh Circuit to request the reopening of his appeal.

MOTION FOR RECONSIDERATION/RELIEF FROM JUDGMENT (DOC. 28)

Petitioner now asks to resubmit his original ยง 2241 petition to this Court, instead of seeking relief from the Court of Appeals. By doing so, he hopes to obtain a different outcome in light of this Circuit's expanded application of the Begay rule, which developed after the original disposition of his case. This Court, however, has entered a final judgment dismissing ...


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