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White v. True

United States District Court, S.D. Illinois

July 12, 2018

WILLIAM A. WHITE, No. 13888-084, Petitioner,
v.
WILLIAM TRUE Respondent.

          MEMORANDUM AND ORDER

          Herndon, Judge

         Petitioner William A. White, who is an inmate in the United States Penitentiary located in Marion, Illinois (“USP-Marion”), brings this habeas corpus action pursuant to 28 U.S.C. § 2241. Petitioner challenges his conviction for soliciting an unnamed person to commit a federal crime of violence in violation of 18 U.S.C. § 373. (Doc. 1, p. 2). Petitioner was convicted in the United States District Court for the Northern District of Illinois. United States v. White, No. 08-cr-851 (N.D. Ill). This matter is now before the Court for preliminary review of the habeas petition.

         Rule 4 of the Rules Governing § 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 corpus cases.

         Background[1]

         Petitioner was charged with soliciting the commission of a violent federal crime against a juror in violation of 18 U.S.C. § 373. The alleged solicitations at issue were messages that Petitioner posted to a website that he created to advance white supremacy, which included a 2005 statement that “[e]veryone associated with the Matt Hale[2] trial has deserved assassination for a long time, ” and a 2008 publication of information related to the foreperson, “Juror A, ” of the jury that convicted Hale. The 2008 post disclosed Juror A's home address and mobile, home, and work phone numbers, though it did not contain an explicit request for Juror A to be harmed.

         In January 2011, Petitioner was tried and convicted by a jury. Petitioner then filed a Rule 29 motion for entry of a judgment of acquittal, arguing that the evidence was insufficient to convict him of solicitation. The district court granted the motion, finding that the government failed to present sufficient evidence for a reasonable juror to conclude that Petitioner was guilty of criminal solicitation, and that Petitioner's speech was protected by the First Amendment. The government appealed, and the Seventh Circuit reversed, reinstating Petitioner's conviction. Petitioner was sentenced to 42 months' imprisonment.

         In December 2013, pursuant to 28 U.S.C. § 2255, Petitioner moved to vacate, set aside, or correct his sentence. White v. United States, No. 13-cv-9042 (N.D. Ill.). Petitioner argued that his trial counsel provided ineffective assistance by removing non-whites and Jews from the jury and by failing to bring to the attention of the government or the court Petitioner's cooperation with law enforcement in a Virginia murder investigation. Id. at Doc. 53.

         By order dated May 4, 2016, the district court denied Petitioner's § 2255 motion. Id. In April 2017, the Court of Appeals for the Seventh Circuit declined to issue a certificate of appealability because Petitioner had failed to make a substantial showing of the denial of a constitutional right. White v. United States, No. 16-2108 (7th Cir. 2017).

         In January 2017, Petitioner asked for leave to file another collateral attack, claiming he was incompetent at the time of trial. White v. United States, No. 17-1143 (7th Cir. 2017). The Seventh Circuit denied the request, finding the proffered evidence did not speak to Petitioner's mental state at the time of trial and noting that Petitioner did not explain why he failed to raise the claim when he filed his original § 2255 petition. Id.

         In April 2018, Plaintiff, once again, sought leave to file a successive § 2255 petition. White v. United States, No. 18-1899 (7th Cir. 2018). Petitioner cited to Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which struck down the “residual clause” of 18 U.S.C. § 16(b) as unconstitutionally vague. Id. Petitioner argued that, because he was convicted of soliciting a “crime of violence” under § 373, his conviction could have rested on the invalidated § 16(b). The Seventh Circuit concluded Dimaya had no bearing on Petitioner's conviction and rejected Petitioner's alternative argument pertaining to whether the crime he solicited contained the required element of force. Id. Accordingly, the request was denied. Id.

         Habeas Petition

         On May 21, 2018, after Petitioner filed a civil suit, the FBI released documents to Plaintiff, including a report dated June 27, 2007. (Doc. 1, pp. 3, 6, 13-14). According to Petitioner, this report reveals that the author, apparently an FBI agent, reviewed postings on Petitioner's website and concluded that he “was not motivated to cause physical harm to persons discussed, but, merely to embarrass them.” (Doc. 1, p. 6). Petitioner believes that this report, as well as other documents released by the FBI on May 21, 2018, demonstrates that he did not possess the requisite intent. According to Petitioner, the newly released documents exonerate him and withholding them violated Brady.

         Petitioner contends that, in light of the newly released documents, he is eligible for relief under § 2241. In support of this contention, Plaintiff cites to Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015), a decision from the Seventh Circuit Court of Appeals addressing whether newly discovered evidence, bearing directly on the constitutionality of a prisoner's death sentence, allowed that prisoner to pursue relief under § 2241.

         Standard ...


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