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Linder v. Kreuger

United States District Court, C.D. Illinois, Peoria Division

March 23, 2017

J E KREUGER, Warden, Respondent.



         Before the Court is David Linder's Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, ECF No. 1. For the following reasons, the Court does not at this time rule on Linder's Petition, but requests further briefing from Respondent, as specified herein. Before the Court are also a number of motions Linder filed after the petition was fully briefed: a motion styling itself pursuant to Federal Rule of Appellate Procedure 23(b), but apparently consisting of additional argument, ECF No. 25; motions for subpoenas, ECF Nos. 26, 27, 31; a motion seeking an order to the same effect as a subpoena, ECF No. 32; miscellaneous inquiries of the Clerk, ECF Nos. 28, 29; more argument, ECF No. 30; a motion for bond, ECF No. 33; a motion for an evidentiary hearing, ECF No. 34; a motion for an expedited ruling, ECF No. 35; and still more argument, ECF No. 36. The motions for subpoenas, for order, for bond, and for an evidentiary hearing are DENIED; the others are MOOT. Respondent's motion to substitute attorney, ECF No. 40, is GRANTED.


         Linder is jailed at the Pekin Federal Correctional Institution in Pekin, Illinois. He was convicted on February 15, 2005 in the Eastern District of Virginia of several drug-related crimes, and sentenced on May 17, 2005, to life imprisonment for conspiracy to distribute and possession with intent to distribute 5-Methoxy-N, N-Diisopropltryptamine (commonly called “foxy”[2]) resulting in death; 240 months of incarceration on each of eighteen counts of distribution of the drug; 240 months on two counts of money laundering; 48 months for five counts of illegal use of a communications facility, and 120 months for one count of engaging in monetary transactions involving criminally derived property. See United States v. David William Linder, Case No. 2:04-CR-00191 (E.D. Va. 2005). The jury found as to the first count that a death resulted from the drugs Linder distributed or caused to be distributed for human consumption. He appealed the convictions to the Fourth Circuit Court of Appeals, which affirmed them all. United States v. Linder, 200 F.App'x 186 (4th Cir. 2006). Linder then filed a petition for postconviction relief pursuant to 28 U.S.C. § 2255, which was considered on its merits and denied on December 4, 2008. His appeal of this denial was dismissed by the Fourth Circuit for want of a certificate of appealability on July 29, 2009.

         He filed the instant petition for relief under 28 U.S.C. § 2241 on February 2, 2015.


         I. Legal Standard on a Petition by a Federal Prisoner for Issuance of a Writ of Habeas Corpus

         Ordinarily, prisoners seeking postconviction relief from a federal district court's judgment must do so via 28 U.S.C. § 2255, “the federal prisoner's substitute for habeas corpus.” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). However, under the “savings clause” of 28 U.S.C. § 2255(e), if a motion pursuant to the statute is “inadequate or ineffective to test the legality of [the petitioner's] detention, ” he may test it instead by seeking a writ of habeas corpus. See 28 U.S.C. § 2241.

         To show that section 2255 is inadequate or ineffective, and that issuance of a writ of habeas corpus may be warranted, a petitioner must establish three threshold conditions. First, he must show that his claim “eludes the permission in section 2255 for successive motions; if it does not, if therefore the prisoner is not barred from filing a successive such motion, then his 2255 remedy is not inadequate and he cannot apply for habeas corpus.” In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998). Section 2255 permits successive motions only when they are based upon new information that would establish innocence by clear and convincing evidence, or upon a new and retroactive rule of constitutional law. 28 U.S.C. § 2255(h). The first condition, then, amounts to a requirement that the challenge depend on a new interpretation of statute, rather than of the Constitution. See Brown, 696 F.3d at 640. Second, the would-be petitioner must show that the case he seeks to rely on, although decided after his initial 2255 petition, was made retroactive in its effect. Id. Third, he must show that the defect of which he complains was “a grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding.” Id. When a sentence is mandatorily increased by operation of rule or statute later determined by the Supreme Court illegal, the error thereby produced is sufficiently grave to warrant a habeas corpus proceeding. See Narvaez v. United States, 674 F.3d 621, 623 (7th Cir. 2011) (reversing application of the then-mandatory career offender Sentencing Guideline as “constitut[ing] a miscarriage of justice”).

         Additionally, although petitions for habeas relief are filed in the federal judicial district where a prisoner is incarcerated, United States v. Prevatte, 300 F.3d 792, 799 (7th Cir. 2002), a petitioner who challenges his federal conviction via a petition for habeas corpus may not take advantage of a favorable difference in the interpretation of federal law between the circuit where he was sentenced and the circuit where he is now incarcerated. See Davenport, 147 F.3d at 612 (“When there is a circuit split, there is no presumption that the law in the circuit that favors the prisoner is correct, and hence there is no basis for supposing him unjustly convicted merely because he happens to have been convicted in the other circuit.”). There is also a requirement, for section 2255 to be ineffective, that a defendant either have raised his legal argument on direct appeal and on any initial 2255 petition for postconviction relief, or that he have had “no reasonable opportunity” to do so because the law was settled against him. Davenport, 147 F.3d at 610.

         II. Analysis

         Linder contends both that the evidence presented at his trial could not sustain a conclusion by the jury that the foxy he distributed or conspired to distribute was a but-for cause of death, and that anyway the jury was not instructed that it had to find the drug was a but-for cause of death. Petition 7-9. He relies on Burrage v. United States, 134 S.Ct. 881, 892 (2014), in which the Supreme Court held that “at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” He argues that Burrage applies retroactively, and that therefore, the enhanced sentence imposed upon him for distribution of “foxy” resulting in death was illegal. Mem. Supp. Petition 2, 4-8, ECF No. 2. He also claims that he was not able to present this argument in his original section 2255 petition because Burrage was announced years later, and that because Burrage turned on statutory interpretation, he cannot bring his new challenge under section 2255, and a writ of habeas corpus is his only available means of relief. Id. 9-11. He also seeks a new trial on all the other counts of his original conviction. Id. 8-9.

         Respondent argues only that Burrage has no retroactive effect, and that the Petition should be construed as a request for relief under section 2255 and dismissed for want of jurisdiction. Response 5-9, ECF No. 6. Neither argument is persuasive.

         21 U.S.C. § 841(b)(1)(C), under which Linder was sentenced for distribution of foxy with death resulting, provides that the penalty for distribution of a schedule I drug, which foxy is, shall not be more than twenty years, but that “if death or serious bodily injury results from the use” of the substance, the sentence shall not be less than twenty years or more than life. If a defendant has sustained a prior conviction for a felony drug offense and death results, the minimum is life.[3] In Burrage, the Supreme Court considered whether a defendant could be convicted under the “death results” provision “when the use of the controlled substance was [merely] a ‘contributing cause' of the death . . . .” Burrage, 134 S.Ct. at 886. The Court determined that the ordinary meaning of “results from, ” a phrase section 841 uses without further explanation, “imposes a requirement of but-for causation.” Id. at 889. This reading compelled the conclusion, quoted above, that, in cases where the drug in question was not an independently sufficient cause of death or injury, it must have been ...

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