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Tidwell v. Krueger

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

November 22, 2017

SAMUEL K. TIDWELL, Petitioner,
v.
J.E. KRUEGER, Respondent.

          ORDER & OPINION

          JOE BILLY MCDADE, UNITED STATES SENIOR DISTRICT JUDGE.

         This matter is before the Court on Petitioner Samuel K. Tidwell's Motion for Reconsideration. (Doc. 17). For the reasons stated below, the motion is DENIED.

         Background and Procedural History

         Petitioner was convicted of conspiring to distribute cocaine and crack cocaine, in violation of 28 U.S.C. § 846, distributing crack cocaine, in violation of 28 U.S.C. § 841(a)(1), and using and carrying a firearm in the commission of a drug trafficking crime, in violation of 28 U.S.C. § 924(c). (Doc. 1 at 11). The Seventh Circuit affirmed Tidwell's conviction and sentence on appeal. United States v. Evans, 92 F.3d 540 (7th Cir. 1996). Petitioner filed for a Writ of Certiorari with the United States Supreme Court which was denied. Tidwell v. United States, 519 U.S. 972 (1996).

         Petitioner has filed numerous motions and petitions since his conviction. Petitioner has filed at least four § 2255 petitions, [1] three applications for permission to file a second or successive § 2255 motion, [2] and two § 2241 petitions-the second of which is at issue in this motion.[3]

         This Court dismissed Tidwell's most recent § 2241 petition on November 2, 2016, because Tidwell had not demonstrated that § 2255 was inadequate or ineffective to challenge his conviction or sentence. Tidwell v. Kruger, 16-cv-1413-JBM (C.D. Ill. Nov. 7, 2016) (Doc. 2). On May 2, 2017, the Seventh Circuit affirmed this Court's dismissal of Tidwell's second § 2241 petition and cautioned Tidwell that submitting frivolous papers would result in a fine similar to those imposed in Alexander v. United States, 121 F.3d 312 (7th Cir. 1997). Tidwell v. Krueger, No. 16-3973 (7th Cir. 2017).

         Now Tidwell files a Motion for Reconsideration pursuant to Rule 60(b) and/or Rule 52(a)(6) of the Court's Order dismissing Tidwell's second § 2241 petition. (Doc. 17). He alleges that claim three in his second § 2241 petition, wherein Tidwell argued that his § 924(c) conviction is invalid under Bailey v. United States, 116 S.Ct. 501 (1995), should not have been dismissed.

         In its November 2016 Order & Opinion, this Court held that Tidwell failed to show that § 2255 was inadequate or ineffective under In re Davenport, 147 F.3d 605 (7th Cir. 1998), because Petitioner could have made a Bailey argument in his first § 2255 petition. (Doc. 2 at 7). The Seventh Circuit agreed on appeal, noting that Bailey was decided before Tidwell filed his first § 2255 motion and that this issue was addressed on direct appeal. Tidwell v. Krueger, No. 16-3973 (7th Cir. 2017).

         In the instant motion, Tidwell argues that while Bailey was decided in 1995, it was not made retroactive on collateral review until 1998, after Tidwell filed his first § 2255 motion. Thus, Tidwell argues that this Court erred in holding that Tidwell could have raised a Bailey claim in his first § 2255 petition.

         Legal Standards and Analysis

         Tidwell's Motion for Reconsideration invokes Federal Rules of Civil Procedure 60(b) and 52(a)(6). Rule 60(b) authorizes a court to grant relief from final judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Fed.R.Civ.P. 60(b).

         Tidwell does not specify which subsection of Rule 60(b) he is invoking, but his claim must fall under one of the narrow grounds for relief delineated. See Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001) (noting that motions made pursuant to Rule 60(b) must specifically indicate the grounds for reconsideration and “cannot be general pleas for relief.”). Tidwell argues that this Court made a “correctable error” when it determined that Tidwell could have raised a Bailey argument in his first § 2255 petition. (Doc. 17 at 2). Tidwell's first § 2255 petition was filed in 1997, but Baile ...


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