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Jenkins v. Warden

United States District Court, S.D. Illinois

March 30, 2017

JERRY W. JENKINS, Petitioner,
v.
B. TRUE, WARDEN, Respondent.

          MEMORANDUM AND ORDER

          HERNDON, District Judge

         Petitioner Jerry W. Jenkins filed a petition for writ of habeas corpus under 28 U.S.C. §2241, Doc. 1. As construed on preliminary review, the petition challenges his sentence as an Armed Career Criminal under 18 U.S.C. §924(c) because he did not have three prior convictions for violent felonies.

         Relevant Facts and Procedural History

         Petitioner was convicted in 2008 of one count of being a felon in possession of ammunition and one count of being a felon in possession of a firearm in the Western District of Missouri, United States v. Jenkins, Case No. 07-cr-00385-DW. The sentencing judge determined that he qualified as a Career Criminal based on prior convictions for Missouri second degree robbery, Missouri forcible sodomy, Missouri attempted robbery/armed criminal action (counted as one criminal episode), and California second degree robbery. Transcript of Sentencing Hearing, Doc. 15, Ex. 1, pp. 4-10.[1] He was sentenced to 327 months imprisonment on each count, to run concurrently. Ex. 1, p. 16.

         On direct appeal, Jenkins argued that the district court erred by: (1) admitting witness Michelle Gordon's testimony that he possessed a firearm before the date of the charged offenses; (2) admitting evidence of several previous felony convictions; and (3) imposing concurrent 327 month sentences. The Eighth Circuit affirmed both the conviction and sentence. United States v. Jenkins, 355 Fed.Appx. 983 (8th Cir. 2009).

         Jenkins filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 in the Western District of Missouri in February 2011. Jenkins v. United States, Case No. 11cv-215-DW. He argued that the district court erred in (1) admitting into evidence the name and nature of his prior felony convictions; (2) allowing Michelle Carson to testify as to certain matters; and (3) not allowing Jenkins to introduce collateral evidence to impeach the testimony of Michelle Gordon. He also alleged ineffective assistance of counsel. In relevant part, he argued that counsel failed to argue that his prior convictions were not violent felonies for purposes of the Armed Career Criminal Act. See, Jenkins, Case No. 11-cv-215-DW, Doc. 2, pp. 23-24. The district court denied the motion and denied a certificate of appealability. The Eighth Circuit also denied a certificate of appealability. Jenkins v. United States, Case No. 11-3846 (8th Cir. April 20, 2012).

         In June 2016, the Eighth Circuit granted Jenkins permission to file a successive §2255 motion to assert a claim under Johnson v. United States, 135 S.Ct. 2551 (2015). Through counsel, Jenkins filed a successive motion, which was denied. The district court also denied a certificate of appealability. Jenkins v. United States, Case No. 16-cv-674-DW, Doc. 12. Jenkins then filed a motion for issuance of a certificate of appealability. The government's response to that motion is due on April 4, 2017. Jenkins, Case No. 16-cv-674-DW, Docs. 14 & 15.

         Grounds for Habeas Relief

         The petition set forth 18 grounds for relief. On preliminary review, this Court determined that all but one were claims that could not be raised in a §2241 petition because they could have been raised on direct appeal or in a §2255 motion. Only ground 17, alleging that petitioner's prior convictions did not qualify as violent felonies under the Armed Career Criminal Act, was potentially cognizable. Giving the pro se petition a broad reading, this Court determined that petitioner was advancing a claim pursuant to Descamps v. United States, 133 S.Ct. 2276 (2013).

         Applicable Legal Standards

         Generally, petitions for writ of habeas corpus under 28 U.S.C. §2241 may not be used to raise claims of legal error in conviction or sentencing, but are limited to challenges regarding the execution of a sentence. See, 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 28 U.S.C. §2255 in the court which sentenced him. A §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).

         A prisoner is generally limited to only one challenge of his conviction and sentence under §2255. A prisoner may not file a “second or successive” motion unless a panel of the appropriate court of appeals certifies that such motion contains either 1) newly discovered evidence “sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense, ” or 2) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §2255(h).

         It is possible, under very limited circumstances, for a prisoner to challenge his federal conviction or sentence under §2241. 28 U.S.C. §2255(e) contains a “savings clause” which authorizes a federal prisoner to file a §2241 petition where the remedy under §2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). See United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir.2002). “A procedure for postconviction relief can be fairly termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of ...


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