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Rucker v. Cross

United States District Court, S.D. Illinois

March 23, 2015

LARRY RUCKER, No. 11049-031, Petitioner,
JAMES N. CROSS, JR., Respondent.


DAVID R. HERNDON, District Judge.

Petitioner Larry Rucker, currently incarcerated at the Federal Correctional Institution in Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241. Put succinctly, Rucker seeks to challenge the sentencing court's determination that his convictions for burglary of commercial buildings would not qualify as a predicate offenses for purposes of a career offender enhancement under the Armed Career Criminal Act ("ACC"), 18 U.S.C. § 924(e). See United States v. Rucker, Case No. 04-cr-20150-JWL (D. Kan. 2005).

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. After carefully reviewing the petition, the Court concludes that this action is subject to dismissal.

Procedural History

In 2005, following a jury trial in the United States District Court for the District of Kansas, Larry Rucker was convicted of being a felon in possession of a handgun (Count 6), in violation of 18 U.S.C. § 922(g)(1); two counts of using, carrying or brandishing a gun during or in relation to a robbery (Counts 2 and 4), in violation of 18 U.S.C. § 924(c); and, two counts of robbery affecting interstate commerce under the Hobbs Act (Counts 3 and 5), in violation of 18 U.S.C. § 1951. Of relevance to the ACC enhancement, Counts 2 and 3 involved a robbery that occurred at the KC Quick Pick, and Counts 4 and 5 involved a robbery which occurred at Bargains to the Max thrift store. See also K.S.A. 21-3715 (now K.S.A. 21-5807). Rucker was sentenced to imprisonment for a term of 509 months. United States v. Rucker, Case No. 04-cr-20150-JWL (D. Kan. 2005).

On direct appeal, Rucker challenged the sufficiency of the evidence against him, and a variety of evidentiary issues. His conviction and sentence were affirmed. United States v. Rucker, 188 Fed.Appx. 772 (10th Cir. 2006).

In 2007, Rucker unsuccessfully moved to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. He took issue with the trial court's jurisdiction under the Hobbs Act, challenged several jurors and an expert witness, and argued that he was denied due process due to the ineffective assistance of counsel. No appeal was taken.

The Habeas Petition

In the instant Section 2241 petition Rucker argues that his convictions for burglary (which the Court assumes involved commercial buildings) do not qualify as predicate offenses triggering the "career offender" enhancement under the ACC. Petitioner maintains that the sentencing court failed to discern the nature of the burglaries for purposes of applying the enhancement, in keeping with the United States Supreme Court's decision in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013). In light of the Court's holding in Descamps, petitioner insists that his convictions should not have been used to enhance his present sentence.

Relying on Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013), and Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012), among other similar cases, petitioner asserts that he may bring this claim under the "savings clause" of 28 U.S.C. § 2255(e) because Descamps establishes that he is "actually innocent" of the ACC sentencing enhancement.


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 § 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 Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998).

A federally convicted person may challenge his conviction and sentence by bringing a motion pursuant to Section 2255 in the court that sentenced him. Indeed, a Section 2255 motion is ordinarily the "exclusive means for a federal prisoner to attack his conviction." Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003).

Under very limited circumstances, however, a prisoner may employ Section 2241 to challenge his federal conviction or sentence. The "savings clause" in 28 U.S.C. § 2255(e) 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." See Hill, 695 F.3d at 648 ("Inadequate or ineffective' means that a legal theory that could not have been presented under § 2255 establishes the petitioner's actual innocence.'") (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002). See also United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The fact that petitioner may be barred from bringing a second/successive Section 2255 petition is not, in itself, sufficient to render it an inadequate remedy. In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998) (Section 2255 limitation on filing successive motions ...

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