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Pepper v. United States

United States District Court, S.D. Illinois

July 14, 2014

STEVEN LESLIE PEPPER, No. 23050-045 Petitioner,
v.
UNITED STATES OF AMERICA, and WARDEN WALTON, Respondents.

MEMORANDUM AND ORDER

DAVID R. HERNDON, Chief District Judge.

Petitioner Steven Leslie Pepper is currently incarcerated in the Federal Correctional Institution at Marion, Illinois. Pepper is before the Court pursuant to 28 U.S.C. § 2241, challenging his criminal conviction and sentence ( United States v. Pepper, 11-cr-3031-RED (W.D. Mo. 2006)). Pepper's petition for writ of habeas corpus is now before the Court for review under Rules 1(b) and 4 of the Rules Governing Section 2254 Cases in United States District Courts.[1]

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."

Background

In 2011, petitioner Steven Leslie Pepper pleaded guilty to (Count 1) enticement of a minor, in violation of 18 U.S.C. §§ 2251(a), (e)), and (Count 2) possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). United States v. Pepper, 11-cr-3031-RED (W.D. Mo. 2006). He was sentenced to consecutive terms of imprisonment: 360 months on Count 1 and 60 months on Count 2, totaling 420 months of imprisonment, to be followed by supervision for life. Pepper did not file a direct appeal.

In October 2012, Pepper moved to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Pepper v. United States, Case No. 012-cv-3485-FJG (W.D. Mo. 2012). Four claims of ineffective assistance of counsel were raised: (1) insufficient pretrial investigation; (2) insufficient advice regarding pleading guilty;

(3) failure to argue against sentencing enhancements; and (4) failure to appeal the sentence. In May 2013, Pepper's Section 2255 motion was denied because it was untimely. No appeal was taken.

The Petition

Now, petitioner Pepper is before the Court pursuant to 28 U.S.C. § 2241, generally reasserting the arguments that counsel was ineffective that were presented in the Section 2255 motion. More specifically, petitioner perceives error in (1) counsel's overall performance, in violation of Strickland v. Washington, 466 U.S. 668 (1984); (2) counsel's failure to negotiate a reasonable plea agreement for consideration, and unreasonable sentencing expectations, in contravention of Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); (3) counsel's failure to ensure the Sentencing Guideline range reflected offense along with the evidence without attributing unfounded weight to relevant conduct, as required under Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), and Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013); and (4) counsel failed to challenge the government's evidence, in violation of Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705 (2011). ( See Doc. 1-1, pp. 7-22).

Petitioner Pepper invokes the "savings clause" in Section 2255(e) which permits Section 2241 to be used where Section 2255 is "inadequate or ineffective" to test the legality of the petitioner's detention. He specifically asserts that he is "actually innocent" under the "new" Supreme Court precedents cited above.

Discussion

As a preliminary matter, it is observed that the proper respondent in a Section 2241 petition is the petitioner's jailer, not the United States. Rumsfeld v. Padilla, 542 U.S. 426, 442, 447 (2004); Kholyavskiy v. Achim, 443 F.3d 946, 948-49 (7th Cir. 2006). Therefore, the United States must be dismissed as a respondent. The petition may proceed, however, because Warden Walton is also named as a respondent.

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 challenges his conviction and sentence, making Section 2255, not Section 2241, the appropriate avenue for relief.

Federal prisoners may utilize Section 2241, however, to challenge the legality of a conviction or sentence in cases pursuant to the "savings clause" of Section 2255(e), where a remedy under Section 2255 is inadequate or ineffective to test the legality of detention. 28 U.S.C. § 2255(e); see also United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). "Inadequate or ineffective' means that a legal theory that could not have been presented under [Section] 2255 establishes the petitioner's actual innocence.'" Hill v. Werlinger, 695 F.3d ...


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