United States District Court, C.D. Illinois, Peoria Division
CLINTON D. COX, Petitioner,
STEVE KALLIS, Respondent.
ORDER & OPINION
BILLY MCDADE UNITED STATES SENIOR DISTRICT JUDGE.
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.
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.
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
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.
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.
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.
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.
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.”)).
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 ...