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Cox v. Krueger

United States District Court, C.D. Illinois

October 19, 2017

EDDIE DAVID COX, Petitioner,
v.
JEFFREY KRUEGER, Warden, Respondent.

          ORDER AND OPINION

          James E. Shadid, Chief United States District Judge

         Now before the Court is Eddie David Cox's Petition [1] for writ of habeas corpus. For the reasons set forth below, Cox's Petition [1] is GRANTED.

         Background

         Petitioner Cox is an incarcerated octogenarian currently serving concurrent life sentences at the Federal Correctional Institution in Pekin, Illinois. Cox is required to seek permission from the Chief Judge of this District before filing any future causes of action because of his “extensive criminal history and equally extensive litigation history.” See Cox v. Rios, No. 12-1331 (C.D. Ill. May 2, 2013). Petitioner's counsel received such permission and filed the instant Petition (Doc. 1) on March 2, 2017. The Government has filed a Response (Doc. 10), to which Cox has filed a Reply (Doc. 13). Unless otherwise indicated, the following facts are culled from these briefs.

         A. Cox's Criminal History

         In November 1989, an indictment was returned in the Western District of Missouri charging Eddie David Cox with conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846 (Count One); impersonating an officer acting under the authority of the United States, in violation of 18 U.S.C. § 912 (Counts Two and Twelve); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Three); Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Counts Four and Seven); felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1) (Counts Five and Eight); and impersonating a federal employee making an arrest or search, in violation of 18 U.S.C. § 913 (Counts Six, Nine, Ten, and Eleven). Petition, Doc. 1, at 2; Response, Doc. 10, at 1-2; Presentence Report, Doc. 12. Following a jury trial, Cox was convicted on all twelve counts. Doc. 12, ¶ 3. Cox's Presentence Report revealed the following prior convictions:

1. April 15, 1960 convictions in Geary County, Kansas, for kidnapping and felonious assault, Cox v. Crouse, 376 F.2d 824 (10th Cir. 1967);
2. An August 21, 1970 conviction in the District of Kansas for bank robbery, in violation of 18 U.S.C. § 2113(a), United States v. Cox, 449 F.2d 679 (10th Cir. 1971); and
3. A February 22, 1971 conviction in the Western District of Missouri for conspiracy to violate narcotics laws, United States v. Cox, 462 F.2d 1293 (8th Cir. 1972).

PSR ¶¶ 47, 51, 52.

         The district court adopted the PSR and found that Cox qualified for a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based on Counts Five and Eight, and imposed concurrent sentences of life imprisonment on the conspiracy and firearms counts, 30 years on the possession with intent to distribute count, 20 years each on the Hobbs Act robbery counts, and three years each on the impersonation counts. On appeal, Cox challenged the validity of the search of his vehicle, the sufficiency of the evidence supporting his conviction, the nondisclosure of a witness cooperation agreement, and the district court's imposition of a $22, 000 fine. The Eight Circuit reversed his conviction on the conspiracy offense and vacated the accompanying fine, but affirmed the remaining convictions and sentences. United States v. Cox, 942 F.2d 1282, 1284 (8th Cir. 1991).

         Cox then filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255. Among the arguments raised therein, Cox claimed that his counsel was ineffective for failing to argue that his kidnapping conviction should not have counted because he received a state discharge of the conviction. The district court resentenced Cox on Count Three to a term of 210 months but denied the balance of Cox's motion. On appeal, the Eighth Circuit affirmed. Cox v. United States, 210 F.3d 378 (8th Cir. 2000). After the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015), Cox sought leave from the Eight Circuit to file a second or successive § 2255 motion. The Eighth Circuit denied authorization without explanation. United States v. Cox, No. 16-2029 (8th Cir. 2016).

         B. Cox's Instant Petition

         Without the application of the ACCA enhancement, the statutory maximum sentence for Cox's two felon in possession of a firearm convictions would have been a 10-year term of imprisonment, rather than the life sentence he received. 18 U.S.C. §§ 922(g)(1), 924(a)(2). The sentencing court determined that Cox was an Armed Career Criminal based on four prior convictions ...


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