United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY McDADE UNITED STATES SENIOR DISTRICT JUDGE
matter is before the Court on a Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 filed by J L Houston. The
motion has been fully briefed. For the reasons stated below,
the petition is DENIED.
August 7, 1997, Petitioner J L Houston was convicted by a
jury of racketeering conspiracy, in violation of 18 U.S.C.
§ 1962(d), and narcotics conspiracy, in violation of 21
U.S.C § 846. United States v. Andrews et al.,
No. 89-cr-00908-20 (N.D. Ill. 1997). Houston's
convictions arose out of his involvement in El Rukn, a
Chicago street gang, and he was one of thirty-seven men
indicted after a successful sting operation on El Rukn's
dummy corporation, Security and Maintenance Services
(“SMS”). United States v. Franklin, 197
F.3d 266, 268 (7th Cir. 1999). Houston was sentenced to life
James B. Zagel, a district judge in the Northern District of
Illinois, presided over Houston's trial. One of
Houston's co-defendants, Noah Robinson, filed a motion
and supporting affidavit asking that Judge Zagel recuse
himself under 28 U.S.C. § 144 and § 455.
Id. at 269. Judge Zagel denied Robinson's motion
for recusal. A year and a half later, Houston simultaneously
filed a motion to adopt the pre-trial motions of other
co-defendants appearing before Judge Zagel and a motion for
recusal pursuant to § 455(a). Id. Judge Zagel
denied Houston's motion for recusal, but did not rule on
Houston's motion to adopt. Id.
and Houston sought recusal of Judge Zagel because Judge Zagel
served as Director of the Illinois State Police during the
mid-1980s when the Illinois State Police became involved in
various operations designed to thwart El Rukn activities.
Id. at 268. While Judge Zagel had “little
day-to-day involvement with operations, ” he
“often served as a representative for the agency to the
public.” Id. After the successful sting
operation leading to Houston's indictment, though he was
not personally involved in the operation, Judge Zagel and
then-Cook County State's Attorney Richard Daley
“held a press conference to announce the
operation's success.” Id. “At the
press conference, Judge Zagel made statements about the SMS
employees and the El Rukns.” Id. “He
said that SMS ‘would not be my first choice to guard
any valuables, ' and that ‘[s]treet gangs have
grown to rival organized crime in the scope of their
operations, and in the savagery in which they control entire
sections of the city.'” Id.
Circuit law at the time of Houston's conviction and
appeal provided that a recusal motion was preserved for
appeal only where a defendant immediately moved for a writ of
mandamus in the event that the district judge denied the
motion for recusal. See Id. at 269; United
States v. Towns, 913 F.2d 434, 443 (7th Cir.1990).
Because Houston failed to request the writ, the Seventh
Circuit held that he waived the recusal issue on appeal.
Franklin, 197 F.3d at 269. Furthermore, since
Houston had an opportunity to renew his motion to adopt but
failed to do so, he also waived that motion on appeal.
Id. at 270; United States v. Taglia, 922
F.2d 413, 416 (7th Cir.1991) (a defendant's failure to
remind the court to rule on a pre-trial motion constituted a
waiver). As Houston waived the recusal issue on appeal, the
appellate court reviewed the merits of the § 455(a) and
§ 144 claims for “plain error, ” which
allows the Court of Appeals to correct only
“particularly egregious errors for the purposes of
preventing a miscarriage of justice.”
Franklin, 197 F.3d at 270 (citing United States
v. Marvin, 135 F.3d 1129, 1135 (7th Cir.1998)). Finding
no such error, the Seventh Circuit affirmed. Id.
26, 2001, Houston filed a Motion to Amend, Correct or Set
Aside Sentence pursuant to 28 U.S.C. § 2255 raising
issues under Apprendi v. New Jersey, 530 U.S. 466,
470 (2000). United States v. Houston, No.
01-cv-04842 (N.D. Ill. 2001). On December 7, 2001, Judge
Zagel denied the Motion. Id. (Doc. 9). The Seventh
Circuit subsequently denied four applications for permission
to file a successive collateral attack under § 2255.
United States v. Houston, No. 18-1937 (7th Cir.
2018); United States v. Houston, No. 17-1117 (7th
Cir. 2017); United States v. Houston, No. 16-2890
(7th Cir. 2016); United States v. Houston, No.
12-2419 (7th Cir. 2012). Houston also filed a “Motion
to Recall the Mandate in Light of Williams v. Pennsylvania,
” which the Seventh Circuit summarily denied.
United States v. Houston, No. 98-3015 (7th Cir.
February 8, 2017, Houston filed the instant Petition for Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (Doc. 1).
Houston argues that he is entitled to a new trial, in front
of a different district court judge, under the authority of
Fowler v. Butts, 829 F.3d 788 (7th Cir. 2016), and
Williams v. Pennsylvania, 136 S.Ct. 1899 (2016). The
Government filed a response on May 25, 2017, (Doc. 7), and
Houston filed a Reply on June 12, 2017, (Doc. 8). Thus, this
matter is ripe for decision.
prisoners who wish to collaterally attack their convictions
or sentences ordinarily must do so under 28 U.S.C. §
2255. Brown v. Rios, 696 F.3d 638, 640 (7th Cir.
2012). Federal inmates may file a petition under 28 U.S.C.
§ 2241 only in the rare circumstance in which the remedy
provided under § 2255 “is inadequate or
ineffective to test the legality of his detention.”
See 28 U.S.C. § 2255(e) (often referred to as
“the Savings Clause”).
2255 is inadequate or ineffective only if the following three
requirements are met: “(1) the petitioner must rely on
a [Supreme Court] case of statutory interpretation (because
invoking such a case cannot secure authorization for a second
§ 2255 motion); (2) the new rule must be previously
unavailable and apply retroactively; and (3) the error
asserted must be grave enough to be deemed a miscarriage of
justice, such as the conviction of an innocent
defendant.” Davis v. Cross, 863 F.3d 962, 964
(7th Cir. 2017). The mere fact that a petitioner's claim
would be an impermissible second or successive § 2255
motion does not render § 2255 inadequate or ineffective.
See In re Davenport, 147 F.3d 605, 609-10 (7th Cir.
1998). Houston cannot satisfy the second requirement, and
therefore his Petition must be denied.
argues that the holdings in Fowler v. Butts, 829
F.3d 788 (7th Cir. 2016), and Williams v.
Pennsylvania, 136 S.Ct. 1899 (2016), entitle him to a
new trial presided over by a different district court judge.
Fowler overruled precedent that the Seventh Circuit
relied on during Houston's direct appeal to hold that
Houston had procedurally defaulted a § 455 challenge to
his trial judge. Specifically, Fowler held that the
Seventh Circuit could consider § 455 recusal arguments
on direct appeal. 829 F.3d at 791. Houston's § 455
arguments were denied as waived on appeal because he failed
to file a writ of mandamus as the law then-required.
Williams held that a Pennsylvania Supreme Court
justice, who as a district attorney had given ...