United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
Dani Hourani, who is currently incarcerated in the Federal
Correctional Institution in Greenville, Illinois, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1). In the Petition, he argues that under
the recent decisions of the Supreme Court in Rosemond v.
United States, 134 S.Ct. 1240 (2014) and Fowler v.
United States, 131 S.Ct. 2045 (2011), he is actually
innocent of his convictions under 18 U.S.C. §§ 2,
1512(a). (Doc. 1).
commenting on the merits of Petitioner's claims, the
Court concludes that the Petition survives preliminary review
under Rule 4 and Rule 1(b) of the Rules Governing Section
2254 Cases in the United States District Courts.
criminal case in the Eastern District of Michigan, United
States v. Hourani, No. 2:95-cr-80071-BAF (E.D. Mich.
July 31, 1996), Petitioner was found guilty at trial of
conspiring to murder a federal witness in violation of 18
U.S.C. §§ 371, 1512 and aiding and abetting the
killing of another person with the intent to prevent the
other person from communication with law enforcement or
attending and testifying at an official proceeding in
violation of 18 U.S.C. §§ 1512(a), 2. (Doc. 1, p.
2). He was sentenced to life imprisonment for the §
1512(a) violation and a concurrent five year term for the
§ 371 violation. Id.
unsuccessfully appealed his convictions and then filed an
unsuccessful § 2255 petition in 2000 claiming
ineffective assistance of counsel. Id. Petitioner
also filed a motion pursuant to Federal Rule of Civil
Procedure 60(b) in October 2003, but it was denied as an
unauthorized second or successive § 2255. Petitioner now
argues that pursuant to Rosemond and
Fowler, he is actually innocent of his 18 U.S.C.
§ 1512(a) and 18 U.S.C. § 2 convictions and
sentences, so his life sentence should be vacated. (Doc. 1,
of the Rules Governing Section 2254 cases in United States
District Courts provides that upon preliminary consideration
by the district court judge, “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to
notify the petitioner.” Rule 1(b) of those Rules gives
this Court the authority to apply the rules to other habeas
a person may challenge his federal conviction only by means
of a motion brought before the sentencing court pursuant to
28 U.S.C. § 2255, and this remedy normally supersedes
the writ of habeas corpus. A § 2241 petition by a
federal prisoner is generally limited to challenges to the
execution of the sentence. Valona v. United States,
138 F.3d 693, 694 (7th Cir. 1998); Atehortua v.
Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Federal
prisoners may utilize § 2241, however, to challenge the
legality of a conviction or sentence in cases under the
“savings clause” of § 2255(e). The savings
clause allows a petitioner to bring a claim under §
2241, where he can show that a remedy under § 2255 is
inadequate or ineffective to test the legality of his
detention. Id. See also United States v.
Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
Court of Appeals for the Seventh Circuit has held that §
2255 is only inadequate or ineffective when three
requirements are satisfied: 1) the petitioner relies on a new
case of statutory interpretation rather than a constitutional
decision; 2) the case was decided after his first § 2255
motion but is retroactive; and 3) the alleged error results
in a miscarriage of justice. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012). “‘Inadequate
or ineffective' means that ‘a legal theory that
could not have been presented under § 2255 establishes
the petitioner's actual innocence.'” Hill
v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (citing
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir.
2002)); In re Davenport, 147 F.3d 605, 608 (7th Cir.
instant Petition meets the first requirement as
Rosemond and Fowler appear to be cases of
statutory interpretation. See Montana v. Cross, 829
F.3d 775, 783 (7th Cir. 2016) (noting Rosemond is a
case of statutory interpretation); See Bruce v. Warden
Lewisburg USP, 868 F.3d 170 (3rd Cir. 2017)
(“[T]he Supreme Court's Fowler decision
interpreted the witness tampering murder statute in a manner
that gave the statute a narrower reach than that previously
permitted by our Circuit precedent.”). The Petition
also appears to meet the second requirement. The Seventh
Circuit has indicated that Rosemond is substantive
and retroactive. Montana, 829 F.3d at 784.
Fowler has also been deemed substantive and
retroactive. Bruce, 868 F.3d at 182 (citing
United States v. Smith, 723 F.3d 510, 515 (4th Cir.
third requirement is not met with respect to Petitioner's
arguments premised on Rosemond. “In Rosemond
the Court clarified what the prosecution must show in order
to sustain a conviction for aiding and abetting a §
924(c) offense.” Nix v. Daniels, 2016 WL
9406711 (7th Cir. 2016) (citing 18 U.S.C. §§ 2,
924(c)). Like in Nix, “Rosemond does
not apply to either set of [Petitioner's] convictions
because neither case charged [Petitioner] with any type of
§ 924(c) offense.” Id.
Court, however, cannot ascertain whether the third
requirement is met as to Petitioner's reliance on
Fowler. The Seventh Circuit has not yet been faced
with a § 2241 petition based on Fowler.
Petitioner claims that Fowler stands for the
proposition that, because the murder victim was an innocent
bystander, “unrelated to any investigation or legal
proceeding, ” Petitioner was innocent of § 1512
because the murder “was not done to silence or prevent
any communication under § 1512.” (Doc. 1, pp.
interpretation of Fowler is incorrect.
Fowler does not address the implications of the
murder of an individual who is not a potential witness or
informant during an attempt to murder a potential witness or
informant. Instead, in Fowler, “the Supreme
Court held that § 1512 requires the government to show
that, if the witness tampering had not occurred, there was a
‘reasonable likelihood' that the witness would have
communicated with federal officers about the
underlying federal offense.” United States v.
Snyder, 865 F.3d 490, 494 (7th Cir. 2017). While
Petitioner does not directly address this ...