United States District Court, S.D. Illinois
THEODORE R. HARMON, #57859-060, Petitioner,
B. TRUE, Respondent.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
Theodore R. Harmon, an inmate who is currently incarcerated
at the United States Penitentiary located in Marion,
Illinois, brings this habeas corpus action pursuant to 28
U.S.C. § 2241. He asserts his conviction in United
States v. Harmon, No. 3:12-CR-00187-JGC-1 (N.D. Ohio
2013) should not qualify as a crime of violence and seeks
resentencing as a nonviolent criminal. (Doc. 1, p. 8).
matter is now before the Court for review of the Petition
pursuant to Rule 4 of the Federal Rules Governing § 2254
Cases in United States District Courts, which 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 Court the authority
to apply the rules to other habeas corpus cases.
was sentenced in 2013 to 168 months imprisonment and a life
term of supervised release for attempting to persuade or
entice a minor to engage in sexual activity while utilizing
means of interstate commerce, in violation of 18 U.S.C.§
2422(b). He appealed and the Sixth Circuit Court of Appeals
affirmed the conviction. U.S. v. Harmon, 593
Fed.Appx. 455, 469 (6th Cir. 2014). Harmon also brought a
challenge to his conviction and sentence pursuant to §
2255 which was denied, and filed a motion to alter or amend
the judgment, pursuant to Federal Rules of Civil Procedure
52(b) and 59(e) which was also denied. See Harmon v.
U.S, No. 16-4256 (6th Cir. 2017) (discussing
Harmon's case history). He appealed the denial of his
motion to alter or amend the judgment and the Sixth Circuit
denied his certificate of appealability application.
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 and 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, 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, something more than a
lack of success with a § 2255 motion must exist before
the savings clause is satisfied.” See Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
satisfies none of these requirements. Unfortunately, his
Petition is not entirely clear as he only cites to case law
and statutes. That said, he appears to be arguing that 18
U.S.C. § 2422(b) does not state that it is a crime of
violence, making it unconstitutionally vague. Harmon
primarily relies on two cases in which the Supreme Court
found criminal statutes unconstitutionally vague: Johnson
v. United States, 135 S.Ct. 2551 (2015), and
Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
Johnson, the Supreme Court held that “imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act [18 U.S.C. § 924(e)(2)(B)] violates
the Constitution's guarantee of due process.” 135
S.Ct. at 2563. Although Johnson was decided after
Harmon's conviction, it announced a new rule of
constitutional law, not a rule of statutory construction.
See Price v. United States, 795 F.3d 731, 734 (7th
Cir. 2015). Additionally, Harmon was sentenced for a
violation of 18 U.S.C.§ 2422(b); he does not explain how
the invalidity of the residual clause at 18 U.S.C. §
924(e)(2)(B) has any bearing on his sentence.
in Dimaya, the Supreme Court held that the
definition of “crime of violence” in the residual
clause of 18 U.S.C. § 16(b), as incorporated into the
Immigration and Nationality Act, was unconstitutionally
vague. Again, there is no indication that 18 U.S.C. §
16(b) played any role in Harmon's sentencing. Nor does he
allege any connection between the above-referenced residual
clauses and the language in his statute of conviction, which
might imply the invalidity of 18 U.S.C.§ 2422(b).
Notably, Harmon's statute of conviction does not require
proof of any violent conduct. As Harmon's Petition does
not trigger the savings clause, his requested relief will be
denied with prejudice.
IS HEREBY ORDERED that the Petition for a Writ of
Habeas Corpus under 28 U.S.C. § ...