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Douglas v. Cross

United States District Court, S.D. Illinois

February 6, 2014

BERNARD DOUGLAS, No. 13373-026 Petitioner,
v.
JAMES N. CROSS, Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, District Judge.

Petitioner Bernard Douglas is currently incarcerated in the Federal Correctional Institution at Greenville, Illinois, serving a 240-month sentence based on a drug charge. On January 14, 2014, petitioner filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241. Douglas argues that his First Amendment right to access the courts was denied when his petition under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence was denied without an evidentiary hearing. See Douglas v. United States, No. 10-CV-1319-MMM (C.D. Ill. May 6, 2011). He seeks reinstatement and/or reconsideration of his Section 2255 motion, complete with an evidentiary hearing as prescribed in Section 2255(b). Douglas does not otherwise attack his conviction, sentence, or the duration of his confinement.

This case is now before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases, such as this action under 28 U.S.C. § 2241.

Procedural History

In 2008, Bernard Douglas pleaded guilty to conspiring to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). See United States v. Douglas, No. 07-CR-10080-MMM-JAG-3 (C.D. Ill. June 30, 2008). Douglas was sentenced to a 240-month term of imprisonment, which was the statutory mandatory minimum sentence. On direct appeal, Douglas unsuccessfully challenged a two-point upward adjustment to his sentencing calculation under U.S.S.G § 3B1.1(c) for his leadership role, and a two point upward adjustment under U.S.S.G. § 3C1.1 for obstruction of justice. See United States v. Douglas, 569 F.3d 635, 637 (7th Cir. 2009). Douglas's petition for writ of certiorari to the United States Supreme Court was denied on October 13, 2009. Douglas v. United States, 558 U.S. 962 (2009).

In October 2010, Douglas filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence, arguing counsel had been ineffective by (1) failing to challenge the government's use of his prior felony drug conviction under Federal Rule of Criminal Procedure 32 and Federal Rules of Evidence 404(b), 802, 803(8), and 902(4); (2) failing to properly challenge the upward adjustment under U.S.S.G. § 3B1.1(c) for his leadership role; and (3) failing to properly challenge the adjustment under U.S.S.G. § 3C1.1 for obstruction of justice. The section 2255 motion was denied without an evidentiary hearing, based on the motion, the government's response and Douglas's reply-which included transcripts and records cited by the district court in its order. See Douglas, No. 10-CV-1319-MMM, Doc. 11 (C.D. Ill. May 6, 2011). As later summarized by the district court:

The Court found that Douglas' first claim of ineffective assistance of counsel failed under the first prong of Strickland v. Washington, 466 U.S. 668 (1984), and so he could not succeed on that first claim. The Court further concluded that it could not find Douglas' counsel's performance was deficient as to his second and third claims of ineffective assistance of counsel, and Douglas could not establish that he was prejudiced by his counsel's alleged deficiency as to those two claims.

Douglas, No. 10-CV-1319-MMM, Doc. 20.[1]

The Court of Appeals for the Seventh Circuit denied Douglas a certificate of appealability, finding that his Section 2255 motion had failed to make a substantial showing of the denial of a constitutional right. See Douglas v. United States, No. 12-2453 (7th Cir. Dec. 18, 2012). Douglas subsequently filed numerous motions in the district court trying to resurrect his Section 2255 motion, eventually resulting in him being sanctioned-the district court denied further appeal in September 2013. See Douglas, No. 10-CV-1319-MMM, Docs. 67, 71.

Douglas has now filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 attacking the denial of his Section 2255 petition without affording him a hearing.

Analysis

Section 2241 as an Avenue for Relief

As a general matter, "28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide federal prisoners with distinct forms of collateral relief. Section 2255 applies to challenges to the validity of convictions and sentences, whereas [Section] 2241 applies to challenges to the fact or duration of confinement. Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir. 2000). See also Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998).

Douglas does not attack the duration of his confinement, per se. Therefore, Section 2241 does not readily appear to be the appropriate avenue for relief. In effect, Douglas is attempting to use this court to allow him to present a successive, redundant Section 2255 petition attacking his conviction and sentence, skirting the requirements for bringing a successive petition ( see ...


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