United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
Kevin Grady, an inmate who is currently incarcerated at the
Federal Correctional Institution located in Marion, Illinois,
brings this habeas corpus action pursuant to 28 U.S.C. §
2241 to challenge his sentence, including restitution, in
United States v. Grady, No. 11-CR-00131 (W.D. Mi.
2012) (“criminal case”). (Doc. 1). Petitioner
asserts that his sentence for wire fraud, bank fraud, and
making false statements is invalid on several grounds:
certain “victims” were not “financial
institutions” as defined by law; many enhancements
added to his sentence were improper or were supported by
insufficient evidence; and, the restitution calculations were
matter is now before the Court for preliminary review of the
§ 2241 Petition. Rule 4 of the Federal Rules Governing
§ 2254 Cases in United States District Courts provides
that upon preliminary consideration by the district 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) gives this courts the authority
to apply the Rules to other habeas corpus cases.
detailed procedural history of Grady's case can be found
in the Order dismissing his previous § 2241 Petition
before this Court (Docs. 6, 7), as well as an Order denying
reconsideration of that decision (Doc. 9). See Grady v.
Baird, No. 16-00285-DRH (S.D. Ill. 2016). In short,
Grady was sentenced to 168 months in prison, four years of
supervised release, and ordered to pay $3, 086, 195.06 in
restitution. He moved to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 in 2014. See
Grady v. United States, 14-00038-RJJ (W.D. Mi. Jan. 13,
2014). His § 2255 Petition was dismissed and the Sixth
Circuit Court of Appeals affirmed with no Certificate of
Appealability. See id., Docs. 22, 23.
after the denial of his § 2255 motion, Grady filed a
§ 2241 Habeas Corpus Petition with this Court in which
he argued that he was innocent of at least some criminal
conduct because his alleged conduct occurred with
institutions that do not fit the statutory definition of
“financial institution.” See Grady v.
Baird, No. 16-00285-DRH (Doc. 1). He also argued that he
received a two-level sentencing enhancement for conduct
involving ten victims, when his conduct only involved nine
victims (Id.). Grady cited a then recent Supreme
Court decision-Alleyne v. United States, 133 S.Ct.
2151 (2015) in support of his arguments.
Court rejected Grady's Petition on multiple grounds (Doc.
6). First, the Court concluded that Grady did not qualify for
relief under the Savings Clause of §2241 because he
could have presented his claims in his earlier § 2255
Motion in the jurisdiction of his conviction. See Grady
v. Baird, No. 16-00285-DRH (Doc. 6). Additionally, the
Court noted that Grady's claims did not rely upon a new
decision or newly discovered evidence that would excuse his
failure to raise the claims earlier (Id.). Secondly,
as to any contention that he was actually innocent and relief
was therefore warranted in the interests of justice, the
Court found that Grady identified no new basis of statutory
interpretation that would give the Court authority to
consider his claim (Id.). Accordingly, the Court
concluded that Grady was ineligible for relief under §
2241 and that his Petition must be dismissed (Id.).
Grady raises similar claims as those in his 2016 § 2241
Petition - that his conviction is premised upon a
misunderstanding of the definition of “financial
institution” and that he received a sentence
enhancement for ten victims when his conduct only encompassed
nine (Doc. 1; Doc. 3 at 5). He also identifies additional
sentencing enhancements that he disagrees with. Specifically,
Grady makes the following claims: the loss calculation was
unfair because he did not get a chance to contest it and the
evidence at trial was insufficient to sustain the loss
calculations (Doc. 3 at 1-4); he should not have received an
enhancement for sophisticated means because his criminal
conduct did not involve multiple states (Id. at 6);
he received a four point enhancement for conduct involving
organizing five or more people even though the indictment
only identified one other person (Id. at 6); and, he
should not have received an enhancement for abuse of power,
because his conduct was not akin to other types of abuse of
power, such as a doctor-patient relationship (Id. at
couches the enhancement issues as an “auxiliary
motion” to his § 2241 Petition, brought under 18
U.S.C. § 3663(A)(d) (Doc. 3). He also appended a
“Motion under 18 U.S.C. § 1344(1) Bank Fraud
Illegal Sentence Actual Innocent, ” wherein he argues
that his conduct with relation to Key Bank Marketing, Inc.
was improperly characterized as bank fraud despite that
entity not being a “financial institution” for
statutory purposes (Doc. 2). Although Documents 2 and 3 are
labeled as “motions” and cite statutes, they
appear to be exhibits submitted in support of the primary
Petition. Grady does not state what it is about the statutes
he relies upon that entitles him to relief. This issue will
be discussed further in the context of the statutes below.
petitions for writ of habeas corpus under 28 U.S.C. §
2241 may not be used to raise claims of legal error in
conviction or sentencing, but are instead limited to
challenges regarding the execution of a sentence. See
Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998). Aside from the direct appeal process, a § 2255
motion is ordinarily the “exclusive means for a federal
prisoner to attack his conviction.” Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003). A prisoner is
generally limited to one challenge of his conviction
and sentence under § 2255. A prisoner may not file a
“second or successive” § 2255 motion unless
a panel of the appropriate court of appeals certifies that
such motion either 1) contains newly discovered evidence
“sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty of the offense, ” or 2) invokes “a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h).
very limited circumstances, however, it is possible for a
prisoner to challenge his federal conviction or sentence
under § 2241. 28 U.S.C. § 2255(e) contains a
“savings clause” under which a federal prisoner
can file a § 2241 petition when the remedy under §
2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e). See
United States v. Prevatte, 300 F.3d 792, 798-99 (7th
Cir. 2002). The Seventh Circuit construed the savings clause
in In re Davenport, 147 F.3d 605, 611 (7th Cir.
1998): “A procedure for postconviction relief can be
fairly termed inadequate when it is so configured as to deny
a convicted defendant any opportunity for judicial
rectification of so fundamental a defect in his conviction as
having been imprisoned for a nonexistent offense.”
Davenport, a petitioner must meet three conditions
to trigger the savings clause. First, he must show that he
relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on
a decision that he could not have invoked in his first §
2255 motion and that case must apply retroactively.
Lastly, he must demonstrate that there has been a
“fundamental defect” in his conviction or
sentence that is grave enough to be deemed a miscarriage of
justice. Brown v. Caraway, 719 F.3d 583, 586 (7th
Cir. 2013). See also Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012). In other words, ...