United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
DAVID R. HERNDON, District Judge.
Petitioner filed this habeas corpus action pursuant to 28 U.S.C. § 2241 on September 9, 2014 (Doc. 1). This is the sixth habeas action that he has filed in this Court in less than eleven months. See also Spencer v. Cross, No. 13-cv-01133-DRH (S.D. Ill. filed November 4, 2013); Spencer v. Cross, No. 14-cv-00056-DRH (S.D. Ill. filed January 16, 2014); Spencer v. United States, No. 14-cv-00756-DRH (S.D. Ill. filed July 1, 2014); Spencer v. Cross, No. 14-cv-00893-DRH (S.D. Ill. filed August 14, 2014); Spencer v. Cross, No. 14-cv-00935-DRH (S.D. Ill. filed August 27, 2014). The instant petition was filed just before the Court dismissed petitioner's fifth habeas corpus action and imposed sanctions against him for filing an excessive number of frivolous § 2241 petitions. See Spencer v. Cross, No. 14-cv-00935-DRH (S.D. Ill. dismissed September 17, 2014) (Doc. 4, p. 4). This petition fares no better than the rest and shall also be DISMISSED.
On September 18, 2007, a jury found petitioner guilty of conspiracy to distribute cocaine and crack, attempted possession with intent to distribute, and money laundering. United States v. Spencer, No. 07-cr-174 (D. Minn.) ("criminal case") (Doc. 144). Petitioner was sentenced to 324 months of imprisonment on January 15, 2009 (Doc. 294, criminal case). The Eighth Circuit affirmed his conviction and sentence on January 21, 2010 (Doc. 333, criminal case).
Petitioner filed a timely motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Spencer v. United States, No. 10-cv-1803 (D. Minn.) (Doc. 338, criminal case). The government was ordered to respond, and the § 2255 motion was denied on April 15, 2011 (Doc. 363, criminal case). Petitioner was denied a certificate of appealability. Id.
He subsequently filed a string of five § 2241 petitions in this Court, all in rapid succession; all five petitions were dismissed with prejudice. Spencer v. Cross, No. 13-cv-01133-DRH (S.D. Ill. dismissed November 27, 2013); Spencer v. Cross, No. 14-cv-00056-DRH (S.D. Ill. dismissed February 10, 2014); Spencer v. United States, No. 14-cv-00756-DRH (S.D. Ill. dismissed July 23, 2014); Spencer v. Cross, No. 14-cv-00893-DRH (S.D. Ill. dismissed September 10, 2014); Spencer v. Cross, No. 14-cv-00935-DRH (S.D. Ill. dismissed September 17, 2014). In each, petitioner raised redundant, meritless arguments, which are summarized in the Court's dismissal order in Spencer v. Cross, No. 14-cv-00935-DRH (Doc. 4, pp. 1-3). Most arguments pertained to the sufficiency of the § 2255 proceeding.
II. Habeas Petition
Petitioner's sixth § 2241 petition is now before the Court. Petitioner once again challenges the sufficiency of the § 2255 proceeding. This time, however, he argues that the district court violated 28 U.S.C. § 2253, when it failed to evaluate the appealability of its decision denying his § 2255 motion (Doc. 1, p. 2). In support of this argument, petitioner claims that § 2253 requires the district court to issue a certificate of appealability ("COA") if "the applicant has made a substantial showing of the denial of a constitutional right." (Doc. 1, p. 3) (quoting 28 U.S.C. § 2253(c)(2)). If the district court declines to issue a COA, petitioner argues that the district court must state the reasons for its denial (citing 28 U.S.C. § 2253(c)(3)). Because the district court allegedly failed to comply with the requirements of § 2253, petitioner claims that he is "in custody in violation of the law of the United States" (Doc. 1, p. 3). He seeks a hearing and inquiry into his allegedly unlawful custody and release from prison (Doc. 1, p. 4).
Petitioner's argument is flawed on many levels, rendering his sixth § 2241 petition utterly lacking in merit. First, he has chosen the wrong legal mechanism to challenge the district court's alleged failure to evaluate the appealability of its decision denying his § 2255 motion. A § 2241 petition by a federal prisoner is generally limited to challenges to the execution of the sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Under limited circumstances, § 2241 may be used to challenge the legality of a conviction or sentence pursuant to the "savings clause" of § 2255(e). 28 U.S.C. § 2255(e). However, the savings clause only allows a petitioner to bring a claim under § 2241, where he can show that a remedy under § 2255 is inadequate or ineffective to test the legality of his detention. Id .; see United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). Here, petitioner is not challenging the execution of his sentence. He is also not challenging the legality of his conviction or sentence under the savings clause of § 2255(e). Therefore, this Court cannot grant him the relief he seeks (i.e., release from custody) under § 2241.
More to the point, petitioner's argument is clearly wrong. He claims that the district court failed to evaluate the appealability of its decision denying his § 2255 motion on April 15, 2011. This is simply not the case. The district court devoted an entire section of its order denying the § 2255 motion to this very issue. The order states, in pertinent part:
IV. Certificate of Appealability
The Court may grant a certificate of appealability only where a petitioner has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Copeland v. Washington, 232 F.3d 969 (8th Cir. 2000). To make such a showing, the issues must be debatable among reasonable jurists, a court must be able to resolve the issues differently, or the case must deserve further proceedings. See Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994). The Court finds that it is unlikely that another court would decide the issues raised in these § 2255 motions differently. For this reason, the Court concludes that... Spencer [has] failed to make the required substantial showing of the denial of a constitutional right, and the Court denies a certificate of appealability.
(Doc. 363, pp. 6-7, criminal case). Given this language in the district court's order, there is no basis for petitioner's argument in the instant habeas ...