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Taylor v. Cross

United States District Court, S.D. Illinois

March 26, 2014

JAMES CROSS, Respondent.


DAVID R. HERNDON, Chief District Judge.

Petitioner, currently incarcerated in FCI-Greenville, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of his sentences. The petition was filed on March 4, 2014.


Following his plea of guilty to five counts of his second superseding indictment, petitioner was sentenced in this Court on June 5, 1991, to serve concurrent sentences totaling 420 months. Count 1 was for conspiracy to distribute over five kilograms of cocaine, in violation of 21 U.S.C. § 846 (Doc. 1, pp. 22, 48-49). Counts 5, 9, and 26 were for possession of three separate firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Doc. 1, pp. 35, 37, 46-49). Count 6 was for the sale of a stolen firearm, in violation of 18 U.S.C. § 922(j) (Doc. 1, pp. 36, 48-49).

The Court found that on Count 1, under 21 U.S.C. § 841(b)(1)(A), petitioner was subject to a mandatory life term because he had two prior drug convictions (Doc. 1, pp. 28, 51 (adopting findings and guideline application in the presentence report)). However, he was sentenced below that guideline range to only 420 months because of his substantial assistance to the government (Doc. 1, p. 51).

Petitioner received concurrent 405-month terms on each of the felon-in-possession counts (5, 9, and 26). Because he had three prior qualifying convictions, he was subject to a mandatory minimum sentence of 15 years on these counts pursuant to 18 U.S.C. § 924(e) (Doc. 1, p. 15). He was sentenced to 120 months (the maximum sentence) for Count 6 (Doc. 1, pp. 28, 49). All these sentences were to be served concurrently to a previously-imposed Illinois state sentence of three years for escape (Doc. 1, pp. 20, 49).

Petitioner did not file a direct appeal, but later filed two challenges to his sentence. In 1997, he unsuccessfully sought relief pursuant to 28 U.S.C. § 2255, claiming a violation of his plea agreement (Doc. 1, p. 4). Taylor v. United States, Case No. 97-cv-360 (S.D. Ill., filed April 23, 1997). On January 23, 2004, he filed a habeas corpus petition under 28 U.S.C. § 2241, arguing that his sentence for conspiracy should not have been enhanced under the career offender guidelines and that he was actually innocent of the facts used to enhance his sentence as a career offender. Taylor v. Veltri, Case No. 04-cv-57 (S.D. Ill.). This Court dismissed the petition for lack of jurisdiction, finding it to be an unauthorized successive motion under § 2255 (Doc. 3 in Case No. 04-cv-57).

The Habeas Petition

In the instant petition, two arguments are raised, both claiming that petitioner is "actually innocent" of the enhanced sentences he received. First, petitioner asserts that under Burrage v. United States, 134 S.Ct. 881, 887 n.3 (2014), which observed in a footnote that 21 U.S.C. § 841(a)(1) is a "lesser included offense" of the crime specified in § 841(b)(1)(C) (death resulting from the use of the unlawfully distributed drug), he should not have been subject to the statutory maximum life sentence (Doc. 1, pp. 12-14). He claims that he pled guilty only to conspiracy to violate 21 U.S.C. § 841(a)(1), and was not charged nor did he plead guilty to a violation of § 841(b)(1)(A) - the provision under which he was sentenced. Standing alone, § 841(a)(1) carries a penalty of only five days or less pursuant to 18 U.S.C. § 3559, according to petitioner. Therefore, this Court had no statutory jurisdiction to sentence him outside § 841(a)(1), and his 420-month sentence must be vacated (Doc. 1, p. 14).

Secondly, petitioner argues that he is actually innocent of the 405-month enhanced sentences for the felon-in-possession counts, which were imposed because he had three prior qualifying felony convictions within the parameters of 18 U.S.C. § 924(e) (Doc. 1, pp. 15-18). Two of those prior convictions were in 1970 for burglary and in 1973 for delivery of a controlled substance, both of which he now contends should not have been counted for enhancement purposes, because his civil rights had been restored on those offenses by operation of law before his conviction in the instant case. Petitioner raises no issue as to the third prior felony, for another delivery of controlled substance offense in 1984. Relying on Caron v. United States, 524 U.S. 308 (1998); United States v. Adams, 698 F.3d 965 (7th Cir. 2012); and United States v. Osborne, 262 F.3d 486 (5th Cir. 2001), he claims that under the Illinois statute[1] in effect prior to 1984, his civil rights were restored as of 1980, which was five years after he completed his sentences on the 1970 and 1973 felonies. Therefore, those two convictions should not have been counted against him, and without them, he did not have the requisite three prior felonies for the imposition of the sentence enhancement.


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 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.

After carefully reviewing the petition in the present case, the Court concludes that petitioner is not entitled to relief as to his challenge to Count 1. Therefore, that portion of his petition (hereinafter designated as Claim 1) shall be dismissed pursuant to Rule 4. However, the Court concludes that petitioner's challenge to the career-criminal enhancement of his sentences for Counts 5, 9, and 26 (hereinafter designated as Claim 2), survives preliminary review under Rule 4. Therefore, a response shall be ordered as to that claim only.[2]

Dismissal of Claim 1 - Challenge to 420-Month Sentence for Cocaine Distribution Conspiracy ...

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