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Rutledge v. Cross

United States District Court, S.D. Illinois

June 5, 2014

TOMMY RUTLEDGE, No. 08829-026, Petitioner,
v.
JAMES CROSS, JR., Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, District Judge.

Petitioner Tommy Rutledge is currently incarcerated in the Federal Correctional Institution at Greenville, Illinois. Rutledge has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking to overturn his conviction and sentence in United States v. Rutledge, Case No. 91-cr-40009-01. Rutledge's petition cites Burrage v. United States, ___ U.S. ___, 134 S.Ct. 881 (Jan. 27, 2014), as a new, retroactive statutory interpretation decision that renders him actually innocent.

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.

After carefully reviewing the petition in the present case, the Court concludes that petitioner is not entitled to relief and the petition must be dismissed.

Procedural History

Although the Court was unable to access Case No. 91-cr-40009-01 in the electronic case filing system (most likely because the case predated electronic filing), the petition and attached documentation, as well as district court orders and appellate decisions sufficiently lay out the procedural history of Rutledge's case.

In 1992, a jury convicted Rutledge and he was sentenced to: (1) life imprisonment for the operation of a continuing criminal enterprise ("CCE") (Count I); (2) life without possible release for conspiracy to distribute and to possess with intent to distribute (Count II); (3) life without possible release for the distribution of cocaine (Count III); (4) ten years for possession of a firearm by a previously convicted felon (Count IV); (5) five years for carrying a firearm during and in relation to a drug trafficking offense (Count V); (6) ten years for using and carrying a firearm during and in relation to a drug trafficking offense (Count VI). The conviction and sentence were affirmed on direct appeal. United States v. Rutledge, 40 F.3d 879 (7th Cir. 1994).

On October 1, 1998, Rutledge was resentenced to a life term on Count II, Conspiracy to Possess with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 846; 360 months imprisonment on Count III, Distribution of Cocaine in violation of 21 U.S.C. § 841(a)(1); and 120 months imprisonment on Count IV, Felon in Possession of a firearm in violation of 18 U.S.C. § 922(g)-all terms of imprisonment to run concurrently. See Doc. 1-2, pp. 9-10.

Rutledge's 1997 motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence was relatively successful. Although the CCE charge (Count I) was vacated, the conspiracy to distribute charge carrying a life term (Count II) was reinstated. The life sentence on the distribution charge (Count III) was reduced to 30 years. The felon in possession of a firearm charge (Count IV) was unchanged. The court vacated the armed drug trafficker conviction (Count V), but allowed for that charge to be retried. Lastly, the armed drug trafficker charge (Count VI) was vacated. United States v. Rutledge, 22 F.Supp2d 871 (C.D. Ill. 1998). The decision was affirmed. Rutledge v. United States, 230 F.3d 1041 (7th Cir. 2000), cert. denied, 531 U.S. 1199 (2001). A second Section 2255 motion was denied as successive. Rutledge v. United States , Case No. 02-cv-4003-MMM (C.D. Ill. dismissed May 29, 2002), aff'd, Case No. 02-3121 (7th Cir. Feb. 12, 2003).

It is the 1998 sentence-Count III in particular- that is at issue in the present Section 2214 petition for writ of habeas corpus, which was filed May 12, 2014 (Doc. 1).

Discussion

A petition seeking habeas corpus relief is appropriate under 28 U.S.C. § 2241 when a petitioner is challenging the fact or duration of confinement. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994).

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. However, the Seventh Circuit has recognized that it is possible, under very limited circumstances, for a prisoner to challenge his federal conviction or sentence under Section 2241. Section 2255(e) contains a "savings clause" which authorizes a federal prisoner to file a Section 2241 petition where the remedy under Section 2255 is "inadequate or ineffective ...


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