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Ellis v. Werlich

United States District Court, S.D. Illinois

October 4, 2016

RUSSELL JAMES ELLIS, No. 06939-424, Petitioner,
v.
WARDEN WERLICH, Respondent.

          MEMORANDUM AND ORDER

          David R. Herndon, Judge

         Petitioner, 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 concurrent sentences.

         Petitioner's 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.

         In June 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.

         On May 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).

         In this action brought pursuant to § 2241, filed on July 1, 2016, petitioner argues that § 2255 is inadequate to permit him to challenge his conviction.

         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.

         The Petition

         As an 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).

         The 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.

         For 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.

         As 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).

         Discussion

         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 ...


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