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Ladd v. Cross

United States District Court, S.D. Illinois

March 14, 2014

ALLEN LADD, No. 05862-090, Petitioner,
v.
JAMES N. CROSS, Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, Chief District Judge.

Petitioner Allen Ladd was found guilty of possession with intent to distribute crack cocaine (21 U.S.C. §§ 841(a)(1)), and a related firearms offense (18 U.S.C. § 922(g)(1)), and is currently incarcerated in the Federal Correctional Institution at Greenville, Illinois, serving a 360-month sentence. United States v. Ladd, No. 05-cr-0042-BBC (W.D. Wisc. 2005). Ladd's direct appeal was unsuccessful.[1] United States v. Ladd, 215 Fed.Appx. 526 (7th Cir. 2007). Ladd's petition under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence was denied without an evidentiary hearing. Ladd v. United States, No. 08-cv-744 (W.D. Wisc. Mar. 17, 2009) (Doc. 97 in the criminal case).

Now before the Court is Ladd's February 20, 2014, petition for habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner argues that his First Amendment right to access the courts was denied when his Section 2255 motion was summarily denied without a hearing. He seeks reinstatement and/or reconsideration of his Section 2255 motion, complete with an evidentiary hearing as prescribed in Section 2255(b). Petitioner 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.

Discussion

Petitioner Ladd's December 2008 motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence, claimed ineffective assistance of counsel at trial and on direct appeal (05-cr-0042-BBC, Doc. 95). The principal arguments among the 14 grounds presented were that the primary drug and gun evidence should have been suppressed based on an illegal stop and search; and there was insufficient evidence that the drug involved was crack cocaine, rather than cocaine base.

The district court, in a detailed order, summarily dismissed the Section 2255 motion without a hearing, based on the parties' briefs (05-cr-0042-BBC, Doc. 97). The appellate court subsequently denied Ladd a certificate of appealability, finding no substantial showing of the denial of a constitutional right. Ladd v. United States, No. 09-1917 (7th Cir. 2009).[2]

Four and half years after his appeal was dismissed, Ladd filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, attacking the district court's denial of his Section 2255 petition without affording him a hearing.

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).

Petitioner 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, petitioner is attempting to use this court to allow him to reopen the Section 2255 case in the Western District of Wisconsin, and/or present a successive, redundant Section 2255 petition attacking his conviction and sentence, skirting the requirements for bringing a successive petition ( see Section 2255(h), (e)), and ignoring Seventh Circuit precedent.

Normally, this Section 2241 would be dismissed out of hand. However, in Gray-Bey v. United States, 209 F.3d 986, 990 (7th Cir. 2000), the Seventh Circuit cautioned: "a district court presented with a petition for a writ of habeas corpus under [Section] 2241 should analyze that petition on its own terms, without assuming that whatever cannot proceed under [Section] 2255 also cannot proceed under [Section] 2241." In addition, in Alaimalo v. United States, 645 F.3d 1042 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit reasoned that, under the gateway offered in Section 2255(e), Section 2241 can be utilized where a petition purportedly brought under Section 2241 is merely a "disguised" Section 2255 motion, and the petitioner has not secured a certificate of appealability (which is the scenario Ladd presents), if the petitioner claims actual innocence and "has not had an unobstructed procedural shot at presenting that claim.'" Id. at 1047 (quoting Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006)).

Petitioner seems to be arguing that he did not have an unobstructed opportunity to argue his Section 2255 petition. Therefore, the Court will provide what is probably ...


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