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Linder v. Kreuger

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

November 2, 2017

J E KREUGER, Warden, Respondent.



         Before the Court are Petitioner Linder's motion for relief from his sentence pursuant to 28 U.S.C. § 2241, ECF No. 1; Linder's motion for additional copies of a docket item, ECF No. 51; Linder's renewed motion for bond, ECF No. 57; Linder's motion for an evidentiary hearing, ECF No. 58; his motion asking the court to take judicial notice of certain records, ECF No. 60; what appears to be a petition for writ of mandamus improperly filed before this Court, ECF No. 61; a premature motion for leave to appeal in forma pauperis, ECF No. 66; Linder's motion to expand the record, ECF No. 67; his motion to expedite consideration of his petition, ECF No. 68; another request for copies of the docket, ECF No. 71; and Respondent's motion to substitute Steve Kallis for Jeffrey Krueger as Respondent, ECF No. 72. For the following reasons, the Court DENIES Linder's request for relief from his sentence, finds his many other motions MOOT, and GRANTS Respondent's motion.


         As detailed in the Court's March 23, 2017 Order, ECF No. 43, Linder was convicted by a jury on February 15, 2005 of conspiracy to distribute and possession with intent to distribute a club drug called “foxy.” The jury found that a death resulted from this distribution. He received a life sentence for this conduct pursuant to the Controlled Substances Act, 21 U.S.C. § 841(b)(1)(C), which requires a life sentence for a defendant who has previously sustained a felony drug conviction and who then distributes certain substances that result in the death of another. Linder was also convicted of 18 counts of distributing the drug, five counts of use of a communications facility to facilitate a drug crime, a money laundering count and a count of conspiracy to launder money, and a count of engaging in monetary transactions involving criminally derived property, all of which carried lesser sentences than life. See United States v. Linder, Case No. 2:04-CR-00191 (E.D. Va. 2005). Linder appealed; his attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious issues for appeal. The Fourth Circuit agreed, affirming the conviction. See United States v. Linder, 200 F. App'x 186, 187 (4th Cir. 2006). Linder sought postconviction relief under 28 U.S.C. § 2255. See Linder v. United States, No. 2:07-cv-00581-JBF (E.D. Va. 2008). His petition was denied on December 4, 2008, and the Fourth Circuit declined to consider his appeal of the denial for want of a certificate of appealiability. United States v. Linder, 329 F. App'x 489 (4th Cir. 2009).

         Linder, who is incarcerated in the Central District of Illinois, sought review of his conviction before this Court pursuant to 28 U.S.C. § 2241 on February 2, 2015. ECF No. 1; see Light v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014) (“The venue requirement in § 2241 is different from the venue requirement in § 2255: while an action under the latter must be brought in the district of conviction, a petition under § 2241 must be brought in the district of incarceration.”). Linder argued that the Supreme Court's decision in Burrage v. United States, 134 S.Ct. 881 (2014), had made unlawful the sentencing enhancement he had received for the death that resulted from his distribution of drugs. Mem. Supp. Pet. 2, ECF No. 2. Respondent sought dismissal of Linder's motion on the ground that Burrage was not retroactive, First Resp. 5-7, ECF No. 6, and that the motion was actually a successive § 2255 petition, id. at 8-9. The Court disagreed, ruling that Burrage was retroactive and that the petition could proceed under § 2241. Mar. 23, 2017 Order 4-11, ECF No. 43. Because Respondent had not addressed the substance of Linder's argument, the Court directed him to do so. Respondent complied on May 4, 2017, ECF No. 49. Linder also filed a by-now-familiar deluge of follow-on motions.


         I. Legal Standard on a Motion for Relief under 28 U.S.C. § 2241

         A prisoner seeking to set aside a federal sentence usually must rely on 28 U.S.C. § 2255. See Collins v. Holinka, 510 F.3d 666, 666-67 (7th Cir. 2007). An older statute, 28 U.S.C. § 2241, codifies the constitutional guarantee of the writ of habeas corpus, giving federal courts broad authority to grant the writ. See U.S. Const., art. 1, § 9, cl. 2; 28 U.S.C. § 2241(a). Section 2255, enacted in 1948, largely supplanted the older § 2241 as the exclusive means for federal prisoners to challenge the legality of their incarceration. See Collins, 510 F.3d at 667; Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003) (“Ordinarily § 2255 is the exclusive means for a federal prisoner to attack his conviction.”). However, § 2255 has a “savings clause, ” which allows a prisoner to proceed under § 2241 in cases where § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). While § 2255 permits second or successive petitions based on new retroactive rules of constitutional law, it contains no such provision for prisoners seeking relief based on new and retroactive interpretations of statute. See 28 U.S.C. § 2255(h)(2). For this reason, § 2255 may be “inadequate or ineffective” when a second or successive petition is brought based on retroactive changes in or interpretations of a statute. See Kramer, 347 F.3d at 217.

         A prisoner who has already filed a § 2255 petition who then seeks retroactive statutory relief from a federal sentence under § 2241 must make three core showings. First, he must show that his legal theory relies on a change of law that has been made retroactive. In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Second, he must show that the change he relies on came after his most recent § 2255 petition, and that his new petition “eludes the permission in section 2255 for successive motions.” Id. Third, the “change in law” upon which he relies cannot just be a difference between the law of the circuit in which he is incarcerated and the law of the circuit in which he was sentenced. Id. at 612.

         In addition, § 2255 is inadequate or ineffective, and § 2241 is available, only if a petitioner had “no reasonable opportunity to obtain earlier judicial correction” of the defect in his sentence he now seeks to challenge. Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016) (quoting Davenport, 147 F.3d at 611). This amounts to a fairly ordinary rule of forfeiture with a fairly large exception. It is a requirement that either (1) the petitioner have made and preserved his newly-valid statutory argument in his earlier § 2255 petitions, even before the change in law or statutory interpretation that ultimately validated the argument, or (2) “[t]he law of the circuit was so firmly against” a petitioner's new § 2241 argument at the time of his original petition(s) that it would just have “clog[ged] the judicial pipes” to raise it at the time. Davenport, 147 F.3d at 610. But see Camacho v. English, 872 F.3d 811, 815 (7th Cir. 2017) (Easterbrook, J., dissenting) (taking the position that the Seventh Circuit erroneously permits forfeited arguments to be raised via § 2241 after a favorable change in law). The rule in the Seventh Circuit, at any rate, is one of lenity, permitting petitioners sometimes to get relief when the Supreme Court narrows the scope of the criminal law in a way that could have benefitted them at their trials, but that they and their attorneys might have had no reason to hope for or, more relevantly, argue for at the time. Cf. Prost v. Anderson, 636 F.3d 578, 592-93 (10th Cir. 2011) (declining to follow the “erroneous circuit foreclosure test” applied by In re Davenport).

         II. Discussion

         Petitioner's core contention is that the jury that convicted him of distributing “foxy” resulting in death, 21 U.S.C. § 841(b)(1)(C), was improperly instructed under Burrage. Pet. 8. That is, he argues that the jury was not instructed that the “foxy” he distributed must have been the but-for cause of the decedent's death. Id.

         The Court held in Burrage 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.” 134 S.Ct. at 892. The Court reached this conclusion, and rejected the government's idea that drugs which were just a “contributing cause” of death could also count, largely on the basis of a plain-language reading of the statute's use of the phrase “results from.” See Id. at 887-88 (producing the dictionary definition of “results” in support of the holding). The Seventh Circuit has emphasized that “Burrage . . . is not about who decides a given question (judge or jury) or what the burden of proof is (preponderance versus proof beyond a reasonable doubt). It is rather about what must be proved.” Krieger v. United States, 842 F.3d 490, 499-500 (7th Cir. 2016). The Seventh Circuit has also deemed Burrage retroactive. Prevatte v. Merlak, 865 F.3d 894, 898 (7th Cir. 2017) (citing Krieger, 842 F.3d at 497).

         Since Burrage was decided years after Linder's § 2255 petition was denied by the district court in Virginia, there's no question that he seeks relief from a change in the law that postdates his last petition. See Davenport, 147 F.3d at 611. There may well, however, be a question as to whether Linder adequately preserved the argument by making it in his earlier petition. Although Respondent addressed that question in neither his original response, ECF No. 6, nor his amended one, ECF No. 49, this Court stated that Linder could not, and therefore, need not have made a Burrage-type argument in his initial § 2255 petition in order to bring it now. Mar. 23, 2017 Order 6. That determination was likely incorrect. See Prevatte, 865 F.3d at 898-99 (rejecting petitioner's § 2241 Burrage argument because he hadn't made it before and hadn't been foreclosed from doing so by circuit precedent). ...

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