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Karr v. Kallis

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

July 29, 2019

GARY PAUL KARR, Petitioner,
v.
STEVE KALLIS, Warden, Respondent.

          ORDER AND OPINION

          James E. Shadid United States District Judge.

         Now before the Court is Petitioner Gary Paul Karr's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (d/e 1). Petitioner is currently incarcerated at the Pekin Federal Correctional Institution in Pekin, Illinois. Also before the Court is Respondent's Motion to Dismiss (d/e 8). For the reasons set forth below, Respondent's Motion to Dismiss (d/e 8) is GRANTED and Petitioner's Petition (d/e 1) is DISMISSED pursuant to 28 U.S.C. § 2255(e).

         Background

         In December 1999, a federal grand jury in the United States District Court for the Western District of Texas charged Petitioner with conspiracy to kidnap, in violation of 18 U.S.C. §§ 1201(c), 2 (Count 1); conspiracy to interfere with commerce by robbery and extortion, in violation of 18 U.S.C. §§ 1951 and 2 (Count 2); interstate travel to commit a crime of violence (robbery), in violation of 18 U.S.C. §§ 1952 and 2 (Count 3); conspiracy to engage in a monetary transaction in criminally derived property, in violation of 18 U.S.C. §§ 1956(h), 1957 and 2 (Count 4); and interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2314 and 2 (Count 5). Indictment, United States v. Karr, No. 1:99-cr-00274-SS (W.D. Tex.) (hereinafter, “Crim.”), (d/e 5).

         Prior to trial, the Government filed a notice of its intent to use prior convictions to enhance Petitioner's sentence under the “three strikes” provision of 18 U.S.C. § 3559(c). Information and Notice (Crim., d/e 36). Pursuant to § 3559(c)(1), “a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if . . . the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of . . . 2 or more serious violent felonies.” Id. “Serious violent felony” is defined to include specific enumerated offenses, including kidnapping and robbery, and conspiracy to commit any of the enumerated offenses. 18 U.S.C. § 3559(c)(2)(F)(i). Additionally, a “serious violent felony” is “any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.” 18 U.S.C § 3559(c)(2)(F)(ii). The statute further states that:

Robbery, an attempt, conspiracy, or solicitation to commit robbery; or an offense described in paragraph (2)(F)(ii) shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that
(i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense; and
(ii) the offense did not result in death or serious bodily injury (as defined in section 1365) to any person.”

18 U.S.C. § 3559(3)(A).

         Here, the Government's Notice identified eight predicate serious violent felony convictions of Petitioner: (1) Indecent Liberties with a Child, Kane County, Illinois, No. 66-CI-3200; (2) Robbery, Cook County, Illinois, No. 72-81; (3) Robbery, Cook County, Illinois No. 72-80; (4) Armed Robbery, Cook County Illinois, Case No. 72-14; (5) Armed Robbery, Jefferson County, Wisconsin, No. 74-454; (6) Armed Robbery, Kane County, Illinois, No. 74-CF-44028; (7) Aggravated Kidnapping, Lake County, Illinois, No. 75-CF-104; and (8) Armed Robbery, McHenry County, Illinois, No. 74-4634. Information and Notice (Crim., d/e 36).

         Petitioner proceeded to trial in May 2000. The jury found Petitioner not guilty of Count 1, but guilty of Counts 2, 3, 4, and 5. Jury Verdict (Crim., d/e 78-1). The jury found that the Government had not proven beyond a reasonable doubt that the offense charged in Count 3 resulted in the death of another person. Id.

         The United States Probation Office prepared a presentence report, finding that Petitioner was subject to mandatory life sentences on Counts 2 and 3 pursuant to § 3559(c)(3). PSR ¶¶ 8, 53 (d/e 10). Prior to sentencing, Petitioner filed a Motion to Quash the Government's Information and Notice regarding the applicability of § 3559(c)(3). See Motion to Quash (Crim., d/e 84). In his Motion, Petitioner argued that he did not have two or more serious violent felonies, because his most recent four convictions resulted in a concurrent sentence, so could only count for one violent felony, and the other four convictions (one conviction for indecent liberties with a child, and three concurrent convictions for robbery and armed robbery) did not qualify as serious violent felonies. Id. at 2. Petitioner also objected to the PSR's finding that his convictions on Counts 2 and 3 qualified as serious violent felonies because this determination had not been made by the jury. See PSR Addendum, Defendant's Objections at 24 (d/e 10).

         A sentencing hearing was held on August 17, 2000. The district judge denied the Motion to Quash and the overruled Petitioner's objection to the PSR. Crim., Aug. 17, 2000 Oral Order. Petitioner was sentenced to a mandatory life imprisonment sentence on Counts 2 and 3, and a 115-month imprisonment sentence on Counts 4 and 5, to be served concurrently. Judgment (Crim., d/e 87).

         Petitioner appealed, challenging, in part, whether a jury should have determined whether Counts 2 and 3 qualified as serious violent felonies pursuant to § 3559(c). United States v. Karr, No. 00-50785 (5th Cir.). The Fifth Circuit denied his appeal. United States v. Karr, 273 F.3d 1098 (5th Cir. 2001) (unpublished). The Supreme Court denied certiorari. Karr v. United States, 534 U.S 1150 (2002). Petitioner filed his initial motion under 28 U.S.C. ยง 2255 in 2003, arguing ...


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