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Dowdy v. Cross

United States District Court, Seventh Circuit

November 27, 2013

GILBERT DOWDY, XXXXX-XXX, Petitioner,
v.
JAMES CROSS, Jr., Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, Chief District Judge.

Petitioner, an inmate in the Federal Correctional Institution located in Greenville, Illinois (FCI-Greenville), brings this habeas corpus action pursuant to 28 U.S.C. § 2241. He challenges an "illegal firearm enhancement" allegedly applied to his sentence by the United States District Court for the Western District of Missouri. He also challenges the formula, which he refers to as the "money conversion innovation, " used by the district court to calculate his sentence.

Rule 4 of the Federal Rules Governing Section 2254 Cases in United States District Courts provides that upon preliminary consideration by the district 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. For the reasons set forth below, the petition shall be DISMISSED.

BACKGROUND

Petitioner was convicted of conspiracy to distribute cocaine and cocaine base, money laundering, and structuring currency transactions in the Western District of Missouri in 1991. See United States v. Dowdy, No. 4:90-cn-00026-GAF (W.D. Mo. Apr. 17, 1992). He was sentenced to life imprisonment for conspiracy, ten years for the currency violations, and twenty years for money laundering, with all sentences to run consecutively. United States v. Turner, 975 F.2d 490, 492 (8th Cir. 1992). The Eighth Circuit affirmed petitioner's conviction and sentence. Id. Petitioner filed a petition for writ of certiorari, which was denied on January 19, 1993. Dowdy v. United States, 506 U.S. 1082 (1993). He subsequently launched sixteen collateral attacks on his conviction and sentence in federal courts in Missouri, Kansas, Colorado, and Illinois.[1] He initiated at least as many appeals in the Seventh, Eighth, and Tenth Circuits.[2] Based on this Court's review of petitioner's litigation history, the collateral attacks were uniformly unsuccessful. The Seventh Circuit warned petitioner that future attempts to file frivolous habeas actions would result in the imposition of sanctions. See Dowdy v. Cross, No. 10-3473 (7th Cir. 2010) (Doc. 17-1, p. 3).

HABEAS PETITION

Petitioner challenges his conviction and sentence on two primary grounds. First, he claims that his life sentence resulted from an "illegal firearm enhancement" that the district court applied to him. Petitioner claims that he was not in possession of a gun while trafficking drugs and was therefore not subject to the sentencing enhancement. Petitioner relies on Brown v. Rios, 696 F.3d 638 (7th Cir. 2012) and Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), in career offender guidelines in calculating his sentence. See also Harvey v. Cross, No. 11-2004 (7th Cir. 2011); Phillips v. Holinka, No. 11-1178 (7th Cir. 2012). Petitioner previously raised this argument in at least two other § 2241 petitions, although he now cites different decisions in support of his argument. See Dowdy v. Cross, No. 3:10-cv-00624 (S.D. Ill. 2010) (Doc. 3); Dowdy v. Cross, No. 10-2786 (8th Cir. Oct. 29, 2010).

Second, petitioner challenges the district court's use of a formula that he refers to as a "money conversion innovation" to calculate the length of his sentence. He does not clearly define this phrase. However, petitioner alleges that his sentence under 21 U.S.C. § 841(b)(1)(A) could not lawfully exceed the statutory mandatory minimum of ten years unless he possessed more than 150 kilograms of drugs while drug trafficking (Doc. 1, p. 2). Petitioner was never convicted of this. He claims that the district court unlawfully converted his money to equivalent drug amounts when determining the length of his sentence, without hearing evidence that his money came from drug sales (Doc. 1, p. 3). Although it is unclear whether petitioner previously raised this argument, he could have-and should have-done so in one of his many prior petitions.

DISCUSSION

Ordinarily, a person may challenge his federal conviction and sentence only by means of a motion brought before the sentencing court pursuant to 28 U.S.C. § 2255, and this remedy normally supersedes the writ of habeas corpus. A petition filed pursuant to 28 U.S.C. § 2241 by a federal prisoner is generally limited to challenges to the execution of the sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). However, if the remedy provided by 28 U.S.C. § 2255 is inadequate or ineffective, a petition challenging the conviction and sentence may be brought pursuant to 28 U.S.C. § 2241. See also Waletski v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) (A "prisoner who challenges his federal conviction or sentence cannot use [§ 2241] at all but instead must proceed under 28 U.S.C. § 2255."). Except in rare instances, § 2255 motions are "adequate" to challenge the validity of an underlying conviction and sentence, even if the challenge is ultimately unsuccessful.

Petitioner contends that § 2255 is inadequate or ineffective to test the legality of his conviction and sentence, but this Court disagrees. With regard to his "illegal firearm enhancement" argument, Petitioner could have raised the argument in his direct appeal or in a § 2255 petition. The alleged lack of a factual or legal basis for the "firearm enhancement" was as apparent then as Petitioner argues that it is now. The same holds true for the district court's use of the "money conversion innovation" referred to by petitioner. The alleged lack of a legal basis for this sentencing formula was as apparent at the time of sentencing as petitioner claims that it is now. It is therefore doubtful that relief pursuant to § 2255 is inadequate or ineffective.

The Seventh Circuit considered the meaning of "inadequacy" for purposes of § 2255 in In re Davenport, 147 F.3d 605 (7th Cir. 1998). The Circuit states that "[a] procedure for post-conviction relief can fairly be termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense. " Davenport, 147 F.3d at 611 (emphasis added). The Circuit clarified this standard, stating that actual innocence is established when a petitioner can "admit everything charged in [the] indictment, but the conduct no longer amount[s] to a crime under the statutes (as correctly understood)." Kramer v. Olson, 347 F.3d 214, 218 (7th Cir. 2003).

Petitioner does not allege that his conduct is no longer a crime. He merely asserts that he is "innocent of a sentencing enhancement" based on possession of a firearm and the "money conversion innovation." As this Court previously explained, "innocence of a sentencing enhancement' is only innocence in a technical sense, ' which is insufficient to show that § 2255 is inadequate or ineffective' and, thus, allow a § 2241 petition by a federal prisoner." Dowdy v. Cross, No. 3:10-cv-00624 (S.D. Ill. 2010) (citing Davenport, 147 F.3d at 609-10) (Doc. 3, p. 4). In other words, even if the trial court misapplied the "firearm enhancement" or the "money conversion innovation" to petitioner, this is not tantamount to "actual innocence" of the underlying offense. Id.

Further, the fact that petitioner may be barred from bringing a second § 2255 petition is not, in itself, sufficient to render it an inadequate remedy. Davenport, 147 F.3d at 609-10 (§ 2255 limitation on filing successive motions does not render it an inadequate remedy for a prisoner who had filed a prior § 2255 motion). In Davenport, the Seventh Circuit held that a federal prisoner should be permitted to seek collateral relief under § 2241 "only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion." 147 F.3d at 611. To be allowed to proceed on this basis, three additional conditions must also be met: (1) the change of law has to have been made retroactively by the Supreme Court; (2) it must be a change that eludes the permission in section 2255 ...


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