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Stallings v. Cross

United States District Court, S.D. Illinois

July 9, 2014

BRETT STALLINGS, No. 17370-047, Petitioner,
JAMES CROSS, Respondent.


DAVID R. HERNDON, Chief District Judge.

Petitioner Brett Stallings, an inmate at the Federal Correctional Institution in Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the sentence imposed in November 2004, after he was convicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). See United States v. Stallings , Case No. 01-cr-30158-WDS (S.D. Ill. judgment filed Nov. 19, 2004). Because he had three prior qualifying offenses, Stallings was sentenced to a 188-month term of imprisonment as an armed career criminal, pursuant to 18 U.S.C. § 924(e)(1). Citing 18 U.S.C. § 921(a)(20), Stallings argues that one of the three prior felonies used to enhance his sentence had been "discharged" and his civil rights had been restored, disqualifying that offense for purposes of the Section 921(e). Consequently, he contends, that he is "actually innocent" and should be resentenced and/or released from prison.

Rule 4 of the Rules Governing Section 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, and reviewing his litigation history, the Court concludes that petitioner is not entitled to relief, and the petition must be dismissed. Furthermore, it appears that sanctions may be warranted, as this is Stallings third Section 2241 petition presenting the same argument.

Procedural History

Petitioner Stallings' 2004 conviction was affirmed on direct appeal. See United States v. Stallings, 160 Fed.App'x 478 (7th Cir. 2005) (addressing the sufficiency of the evidence).

Petitioner next filed a motion under 28 U.S.C. § 2255 to vacate, correct or set aside his sentence. See Stallings v. United States , Case No. 06-cv-136-WDS (S.D. Ill. filed Feb. 14, 2006). He raised several claims, including that his counsel was deficient for failing to raise the issue that he should not have been sentenced as an armed career criminal. The petition was dismissed and petitioner appealed. As part of that appeal, he attempted to raise the claim that a prior burglary conviction was not a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). In denying petitioner's request to expand the scope of his appeal, the Court of Appeals noted that petitioner's claim was frivolous, finding that "[t]he indictment and judgment for that conviction reveal that Mr. Stallings burglarized a structure, and burglary of a structure is per se a violent felony.'" Stallings v. United States, 536 F.3d 624, 626 n.1 (7th Cir. 2008); see also 18 U.S.C. § 924(e)(2)(B)(ii). The matter was remanded on other grounds for a determination as to whether the 188-month sentence would have been the same if this Court had viewed the sentencing guidelines as advisory rather than mandatory; upon remand this Court confirmed the sentence would not have changed.

In 2012, Stallings challenged the armed career criminal enhancement in his first Section 2241 petition, Stallings v. Cross, Case No. 12-cv-643-DRH (S.D. Ill. filed May 18, 2012). He argued that his sentence should not have been enhanced, because the burglary offense on which it was based had been dismissed.[1] On August 9, 2012 (Case No. 12-cv-643-DRH, Doc. 5), the undersigned Judge dismissed that petition on preliminary review, finding that petitioner's argument had been specifically addressed by this Court in the Section 2255 proceeding, Stallings v. United States , Case No. 06-cv-136-WDS. Review of the record showed that the sentence enhancement was based on the "Wayne burglary, " and not on the "Bailey burglary" (which had been dismissed). See Case No. 12-cv-643-DRH, Doc. 5, n.2. Furthermore, petitioner's appeal from the denial of his Section 2255 motion was found to be frivolous, which alone was grounds for dismissal of the first Section 2241 petition ( see Case No. 06-cv-136-WDS, Doc. 66). Finally, petitioner made no showing that he had a non-frivolous claim of actual innocence that could not have been brought in a Section 2255 proceeding (Case No. 12-cv-643-DRH, Doc. 5).

After dismissal of that first Section 2241 petition (Case No. 12-cv-643-DRH), Stallings filed a motion to alter or amend judgment, which was denied on September 27, 2012 (Case No. 12-cv-643-DRH, Doc. 8). Petitioner did not appeal the dismissal of that case, and instead filed a second Section 2241 petition, Stallings v. Cross, Case No. 12-cv-1097-DRH (S.D. Ill. filed Oct. 15, 2012).

In his second Section 2241 petition, Stallings again argued that he had only two prior qualifying felonies, not three, thus his enhanced sentence was improper. He asserted that the Court erred in finding that the exact issue raised in the Section 2255 proceeding, Case No. 12-cv-643-DRH, had been addressed in his first Section 2241 petition, Case No. 06-cv-136-WDS. Stallings attempted to distinguish the two actions by noting that his Section 2255 arguments were based on his belief that the dismissed "Bailey burglary" was the basis for the sentence enhancement. Because the Court did not make clear until its November 2, 2011, order that the Wayne burglary was the third offense that provided grounds for the enhanced sentence, Stallings contended he should have been permitted to challenge the sentence by attacking the "Wayne burglary" via Section 2241. More specifically, Stallings argued that under Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009), the "Wayne burglary" should not have been used to enhance his 2004 sentence because his civil rights had been restored after he completed the sentence on the "Wayne burglary" Order for Discharge). Because the Buchmeier decision post-dated petitioner's 2006 Section 2255 motion, he claimed he could not have brought this argument in that proceeding.

This Court was unpersuaded. Stallings' second Section 2241 petition was dismissed because it re-asserted grounds which were previously dismissed with prejudice in his Section 2255 proceeding, Case No. 12-cv-643-DRH, and which should have been challenged on appeal, rather that reargued in a second petition. See Case No. 12-cv-1097-DRH, Doc. 3. Citing 28 U.S.C. § 2255(e), Hill v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012), Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012), and In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998), the Court further concluded that Stallings had failed to show that Section 2255 was inadequate of ineffective to test the legality of his detention.

In an unpublished order dated January 25, 2013, the Court of Appeals for the Seventh Circuit affirmed the dismissal of Stallings' second Section 2241 petition. Stallings v. Cross, Case No. 12-3637 (7th Cir. Jan. 25, 2013) (Case No. 12-1097, Doc. 12-1). The appeal was characterized as "meritless." Furthermore, Stallings was warned that "the submission of frivolous papers will result in sanctions." Id. (citing Alexander v. United States, 121 F.3d 312 (7th Cir. 1997) (finding that courts have inherent authority to protect themselves from vexatious litigation and imposing a $500 fine for the filing of a third collateral attack, and entering a filing ban pursuant to Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995)).

The Third Section 2241 Petition

Undeterred, Stallings has now filed a third Section 2241 petition (Doc. 1) raising, essentially, the same arguments presented in his other two Section 2241 petitions. Consequently, the Court adopts and reiterates its order dismissing the second petition, Case No. 12-cv-1097-DRH, Doc. 3. The following additional analysis is offered in order to distinguish the second ...

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