United States District Court, S.D. Illinois
RUSSELL JAMES ELLIS, No. 06939-424, Petitioner,
WARDEN WERLICH, Respondent.
MEMORANDUM AND ORDER
R. Herndon, Judge
currently incarcerated in the FCI-Greenville, brings this
habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the constitutionality of his confinement. He is
serving a life sentence based on his 1998 convictions in the
Northern District of Illinois on a number of charges,
including operating a continuing criminal enterprise of drug
distribution as a member of the Gangster Disciples.
United States v. Smith, McCain, Ellis, et al., 223
F.3d 554 (7th Cir. 2000). He is also serving several lesser
principal argument on appeal was that the life sentence
imposed pursuant to 21 U.S.C. § 848(b) was improper,
because the facts supporting the sentence had not been
submitted to the jury to be proven beyond a reasonable doubt.
Instead, the sentence was imposed based on factual findings
by the trial judge, after the jury found petitioner guilty of
the “separate crimes” under §§ 848(a)
and (c) (Doc. 1, p. 2). Analyzing the applicability of the
rule in Apprendi v. New Jersey, 530 U.S. 466 (2000),
to petitioner's claims, the Seventh Circuit soundly
rejected his argument that § 848(b) was an element of
the crime that must be tried to a jury. Smith, 223
F.3d at 565-66.
2003, petitioner filed a motion under 28 U.S.C. § 2255
seeking to vacate, set aside or correct his sentence, raising
the same issues regarding § 848(b). That motion was
denied, because petitioner could not relitigate claims in
that proceeding that had been decided on direct appeal.
11, 2016, after the Supreme Court decided Alleyne v.
United States, 133 S.Ct. 2151 (2013), petitioner sought
permission from the Seventh Circuit to file a second §
2255 motion. He claimed that Alleyne represented a
change in the law under which he could pursue relief on the
theory that he had been convicted of a separate crime under
§ 848(b) which had been neither charged nor found by the
jury beyond a reasonable doubt. The Seventh Circuit denied
the application to pursue a second § 2255 motion on June
9, 2016 (Appeal No. 16-2099).
action brought pursuant to § 2241, filed on July 1,
2016, petitioner argues that § 2255 is inadequate to
permit him to challenge his conviction.
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.
initial matter, two motions to amend/supplement the petition
were docketed by the Clerk, after petitioner submitted
documents on July 25, 2016, and August 1, 2016 (Docs. 4 and
5). The first document seeks to add two more claims and
related arguments to the petition. Both claims relate to
petitioner's central argument that he was improperly
convicted and sentenced under § 848(b). The second
document is titled “Supplemental Motion, ” and
includes additional legal arguments in support of the
petition. The Court construes these documents as memoranda of
law, and GRANTS the motions to amend/supplement (Docs. 4 and
5). The Clerk is DIRECTED to file these two documents as
memoranda in support of the petition (Doc. 1).
petition raises the following grounds: (1) The life sentence
imposed under § 848(b) is unconstitutional because
petitioner was not found guilty beyond a reasonable doubt,
but instead under a preponderance of the evidence standard;
and (2) The district court lacked authority to impose
punishment under § 848(b) because petitioner was found
guilty only of § 848(a) and (c), not of the
“separate aggravating crime” in § 848(b) of
300 times the specified drug quantity (Doc. 1, pp. 6-7).
Petitioner's additional claims, articulated in the July
25, 2016, document, are: (3) The indictment failed to charge
the § 848(b) violation of 300 times the quantity of
cocaine described in § 841(b)(1)(B), depriving
petitioner of his Fifth Amendment and Sixth Amendment rights;
and (4) Petitioner's Sixth Amendment right was violated
when the “separate aggravating crime” of §
848(b) was not submitted to the jury for a determination of
guilt or innocence.
each of these grounds, petitioner relies on Alleyne v.
United States, 133 S.Ct. 2151 (2013), for the
proposition that § 848(b) must be viewed as a separate
aggravating crime. As such, he claims that the factors in
that section of the statute should have been submitted to the
grand jury, charged in the indictment, and put before the
trial jury for a decision that he was guilty beyond a
reasonable doubt, in order for the life sentence under §
848(b) to have been imposed on him.
relief, petitioner seeks to have the life sentence under
§ 848(b) vacated, and to be sentenced according to the
jury's verdict. He asserts that his punishment should not
have exceeded 20 years (Doc. 1, p. 8).
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 ...