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Redd v. Cross

United States District Court, Southern District of Illinois

March 5, 2015

KENNETH REDD, Petitioner,
v.
JAMES CROSS, JR., Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON JUDGE UNITED STATES DISTRICT COURT

Kenneth Redd, an inmate in the Bureau of Prisons, filed a petition for writ of habeas corpus under 28 U.S.C. §2241 (Doc. 1). With leave, he filed a supplement at Doc. 20.

In 2005, a jury in the Eastern District of Missouri convicted petitioner of (1) possession of firearms by a convicted felon, in violation of 18 U.S.C. §922(g)(1); 1. tampering with evidence, in violation of 18 U.S.C. §1512(b)(2)(B); and (3) obstruction of justice, in violation of 18 U.S.C. §1512(c)(2). He was sentenced to 240 months imprisonment on Count 1, 120 months imprisonment on Count 2, and 240 months imprisonment on Count 3, to be served concurrently. See. Judgment, Doc. 12, Ex. 4.[1]

As grounds for habeas relief, Redd claims that he is actually innocent of the possession of firearms charge.

Respondent argues that petitioner is precluded from bringing a §2241 petition because he could have raised this claim in a motion under 28 U.S.C. §2255. In addition, respondent argues that petitioner has not presented a non- frivolous claim of actual innocence.

1. Relevant Facts and Procedural History

This description of the facts is derived from District Judge Charles A. Shaw's Memorandum and Order denying petitioner's motion to vacate, set aside or correct sentence under 28 U.S.C. §2255, Doc. 12, Ex. 16.

On July 5, 2005, Sergeant William McEntee of the Kirkwood, Missouri, Police Department was shot to death while sitting in his police car. Kevin Johnson, Jr., was identified as the person who killed Sergeant McEntee. Johnson fled from the scene, taking the firearm used to kill Sergeant McEntee as well as Sergeant McEntee's weapon. A detective investigating the murder received a tip that Johnson's father had asked petitioner Redd to move Johnson, Jr.'s white Ford Explorer because Johnson, Jr., had some "static" with the police in Kirkwood. Johnson, Sr., asked Redd to acquire a car so that his son could leave the area. The informant also indicated that the Explorer was located at the Nantucket Gardens Apartments in Ferguson, Missouri, where Redd lived, and that Redd was on parole and was scheduled to see his parole officer on July 6, 2005.

Suspecting that Johnson, Jr., might be with Redd, law enforcement officers met him at the office of his parole officer. Redd admitted moving the Explorer, but denied knowing anything about the murder of Sergeant McEntee or the whereabouts of Johnson, Jr. Redd said that he lived in the Nantucket Gardens Apartments, 1002 Chambers Road, Apartment D. A detective requested permission to search Redd's apartment to look for the missing weapons, and Redd consented. Redd told the police that he had two firearms at the apartment. The search turned up a rifle, an over-and-under shotgun, and a pistol. The rifle and shotgun were found in a closet which also contained men's clothing. Redd was then arrested.

Redd's girlfriend, Linda Poole, also lived at 1002 Chambers Road, Apartment D. In a written statement, she said that she and Redd were the only people who had keys to the apartment. She claimed that the pistol was hers, but denied ownership of the other two firearms.

Redd and Linda Poole had a number of telephone conversations while Redd was detained awaiting trial, and she visited him in jail. Counts 2 and 3 arose out of Redd's successful efforts to have his possessions removed from the apartment before the police came to take photographs, and his unsuccessful attempts to persuade Poole to disavow the written statement she had given to the police and to give false testimony to the grand jury. As Redd does not challenge his convictions on those Counts, it is not necessary to delve into the facts supporting those charges.

On direct appeal, Redd argued that his Sixth Amendment rights were violated because he was sentenced as an armed career criminal based on the trial judge's factual findings as to the number and violent nature of his prior convictions. The Eight Circuit affirmed. Doc. 12, Ex. 5.

Redd filed a pro se motion for new trial. Among other points, he argued that he had newly discovered evidence to support his claim that it was unreasonable for the police to conclude that he had authority to consent to a search of the apartment. The newly discovered evidence was the affidavit of the manager of the Nantucket Gardens Apartments, Brian Burton, dated December 19, 2007. Doc. 12, Exs. 7 & 8, pp. 46-47. The motion for new trial was denied, and the Eighth Circuit affirmed. Doc. 12, Exs. 10 & 11.

Petitioner also filed a motion to vacate, set aside or correct sentence under 28 U.S.C. ยง2255. That motion raised claims of ineffective assistance of trial and appellate counsel, as well as an argument related to the application of the Sentencing Guidelines. Doc. 12, Ex. 14. The motion was denied, and the ...


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