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Spencer v. Cross

United States District Court, S.D. Illinois

September 10, 2014

ANTWOYN TERRELL SPENCER, No. 14781-041, Petitioner,
v.
JAMES CROSS, JR., Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, Chief District Judge.

Petitioner Antwoyn Terrell Spencer is currently incarcerated in the Federal Correctional Institution at Greenville, Illinois, located within the Southern District of Illinois. On August 4, 2014, Spencer filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). The petition is aimed at upsetting Spencer's conviction and sentence, by way of challenging the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence without an evidentiary hearing.

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.

I. Discussion

A. Synopsis of Procedural History

In 2007, a jury in the Southern District of Indiana convicted petitioner Spencer of conspiring to distribute crack cocaine, and other related charges. United States v. Spencer, et al ., Case No. 07-cr-174-JRT-JJG-1 (D. Minn.). He was sentenced 324 months in prison. The conviction and sentence were affirmed on direct appeal. See United States v. Spencer, 592 F.3d 866 (8th Cir. 2010).

Spencer, proceeding pro se, filed a timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, raising issues of ineffective assistance of trial and appellate counsel (Doc. 338 in the criminal case). More specifically, he raised issues regarding the sufficiency of the evidence, the jury instructions, trial counsel's failure to object to remarks of a co-defendant's counsel regarding Spencer "hiding behind the Fifth Amendment, " and appellate counsel's failure to challenge the drug quantity and sentence. The government was ordered to respond (Doc. 340 in the criminal case), but no evidentiary hearing was held.

The Section 2255 motion was denied in April 2011 (Doc. 363 in the criminal case). The district court concluded that trial counsel's purported errors were all raised on appeal and could not be recast under the guise of a Section 2255 motion regarding ineffective assistance of counsel-consequently, the issues could not rise to the higher standard under Strickland v. Washington, 466 U.S. 668, 687 (1984). Similarly, the district court concluded that appellate counsel had challenged the drug quantity and sentence on appeal. The district court declined to issue a certificate of appealability. The Court of Appeals for the Eighth Circuit also declined to issue a certificate of appealability and the appeal was dismissed in October 2011 (Doc. 384 in the criminal case).

Spencer then filed multiple motions pursuant to Federal Rule of Civil Procedure 60, which were denied as successive Section 2255 motions (Docs. 406, 408). He now turns to Section 2241.

B. The Petition

In his Section 2255 petition for writ of habeas corpus Spencer continues to try to upset his conviction and sentence by challenging the denial of his initial motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence without an evidentiary hearing (Docs. 338, 363 in the criminal case).

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 Section 2241 to allow him to reopen the Section 2255 case in the District of Minnesota, and/or present a successive, redundant Section 2255 petition attacking his conviction and sentence, skirting the requirements for bringing a successive petition ( see Sections 2255(h) and (e)), and ignoring controlling precedent. Nevertheless, 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 to test the legality of his detention." 28 U.S.C. § 2255(e). See 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 § 2255 establishes the petitioner's actual innocence.'" Hill, 695 F.3d at 648 (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002)). See also Prevatte, 300 F.3d at 798-99. Spencer seems to be arguing that he did not have an ...


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