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Cox v. Kallis

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

June 14, 2018

CLINTON D. COX, Petitioner,
STEVE KALLIS, Respondent.

          ORDER & OPINION


         This matter is before the Court on an Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 5) filed by Clinton D. Cox. The petition has been fully briefed. For the reasons stated below, the petition is DENIED.


         In 2001, following a jury trial in the District of Connecticut, Petitioner Clinton D. Cox was convicted “on substantive and conspiratorial counts of trafficking in 50 grams or more of crack cocaine, ” in violation of 21 U.S.C. §§ 841(a)(1), (b) (1) (A), 846, “as well as multiple counts of using a firearm in the course of his drug-trafficking crimes, ” in violation of 18 U.S.C. § 924(c)(1)(A). United States v. Cox, 458 Fed.Appx. 79 (2d Cir. Feb. 6, 2012). Cox had a prior conviction in Connecticut for possession of narcotics, in violation of Conn. Gen. Stat. 21(a)-279(a), and the district court determined that Cox's Connecticut drug offense qualified as a “felony drug offense” under 21 U.S.C. § 802(44). As a result, the sentencing ranges for Cox's federal drug trafficking convictions were enhanced from 10 years to life to 20 years to life for the § 841(b)(1)(A) conviction, and from 20 years to 30 years for the § 841(b)(1)(C) conviction.

         On September 12, 2001, Cox was sentenced to 540-months imprisonment (360-months imprisonment on the drug counts to run concurrently, and 60-months imprisonment on each of the three firearm counts to run consecutively). Cox v. United States, No. 3:00CR69, 2006 WL 1210891, at *1 (D. Conn. May 5, 2006); United States v. Cox, 324 F.3d 77, 79 (2d Cir. 2003). Cox's convictions and sentence were affirmed on direct appeal. United States v. Cox, 59 Fed.Appx. 437, 438 (2d Cir. 2003); Cox, 324 F.3d at 79-80.

         Cox filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on the grounds that “his counsel made various errors at trial, and thus rendered ineffective assistance, and “that the court violated his Sixth Amendment rights by sentencing him based on facts not found by the jury.” Cox v. United States, No. 3:04CV1383, 2006 WL 2053469, at *2 (D. Conn. July 20, 2006). The district court denied Cox's Motion. Id.

         On December 19, 2008, Cox filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the Middle District of Pennsylvania challenging the legality of his § 924(c)(1)(A) convictions. Cox v. United States, No. 3:11CV1568, 2013 WL 11330641, at *2 (D. Conn. Sept. 24, 2013), supplemented, No. 3:11CV1568, 2014 WL 12656536 (D. Conn. July 2, 2014). The Government agreed that Cox's § 2241 petition should be granted and the case was transferred to the District of Connecticut for resentencing. Id. The District of Connecticut vacated Cox's § 924(c)(1)(A) convictions and resentenced him on his remaining drug convictions to concurrent terms of 360-months imprisonment. Id.

         Cox appealed his new sentence as procedurally and substantively unreasonable. Cox, 458 Fed.Appx. 79. While his appeal was still pending, Cox filed another § 2255 Motion and two motions to amend. Cox, 2013 WL 11330641, at *2. His Motion and amended motions alleged that a witness offered perjured testimony at his trial. Id. The district court held that Cox's second § 2255 Motion was untimely, id., and the Second Circuit ultimately denied Petitioner's sentencing claims on appeal, Cox, 458 Fed.Appx. 79.

         On May 30, 2017, Cox filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, (Doc. 1), and he filed an Amended Petition on June 29, 2017. (Doc. 5). Cox argues that under Mathis v. United States, 136 S.Ct. 2243 (2016), his prior Connecticut drug offense should not have qualified for a sentence enhancement under § 841(b). On September 27, 2017, the Government filed its response, (Doc. 11), and Cox has filed several replies, (Docs. 14, 15, 16). Thus, this matter is ripe for decision.

         Legal Standards

         As an initial matter, the Court notes that because Cox was convicted in Connecticut, the substantive law of the Second Circuit governs Cox's § 2241 petition. Braxton v. Werlich, No. 18-CV-0948, 2018 WL 2299230, at *2 (S.D. Ill. May 21, 2018); Salazar v. Sherrod, No. 09-CV-619, 2012 WL 3779075, at *5 (S.D. Ill. Aug. 31, 2012); Hernandez v. Gilkey, 242 F.Supp.2d 549, 554 (S.D. Ill. 2001). “[A]lthough petitions for habeas relief are filed in the federal judicial district where a prisoner is incarcerated . . . petitioner who challenges his federal conviction via a petition for habeas corpus may not take advantage of a favorable difference in the interpretation of federal law between the circuit where he was sentenced and the circuit where he is now incarcerated.” Linder v. Kreuger, No. 1:15-CV-01055, 2017 WL 1102740, at *2 (C.D. Ill. Mar. 23, 2017) (citing In re Davenport, 147 F.3d 605, 612 (7th Cir. 1998). 583, 586 (7th Cir. 2013) (“When there is a circuit split, there is no presumption that the law in the circuit that favors the prisoner is correct, and hence there is no basis for supposing him unjustly convicted merely because he happens to have been convicted in the other circuit.”)).

         Federal 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”).

         Section 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 ...

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