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Poe v. LaRiva

United States Court of Appeals, Seventh Circuit.

August 22, 2016

JlMMIE DARRELL POE, SR., Petitioner-Appellant
v.
Leann LaRiva, Warden, Respondent-Appellee.

          Argued April 7, 2016

         Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division No. 2:14-cv-00324 - William T. Lawrence, Judge.

          Before Easterbrook, Kanne, and Sykes, Circuit Judges.

          Kanne, Circuit Judge.

         In 1996, a jury convicted Petitioner Jimmie Poe of several narcotics-related offenses, including engaging in a continuing criminal enterprise ("CCE"). On June 1, 1999, the Supreme Court decided Richardson v. United States, 526 U.S. 813 (1999), which rendered the CCE jury instructions used in Poe's trial erroneous.

         Poe petitioned, on July 16, 1999, for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his conviction under Richardson. Fourteen months later, the district court dismissed Poe's § 2241 petition without prejudice, because he should have filed under 28 U.S.C. § 2255. On June 18, 2001, Poe petitioned for a writ of habeas corpus, pursuant to § 2255, which was subsequently denied as time-barred. We affirmed the district court's denial of Poe's § 2255 petition in Poe v. United States, 468 F.3d 473 (7th Cir. 2006).

         On October 28, 2014, Poe filed a new § 2241 petition, challenging his conviction and sentence in light of Alleyne v. United States, 133 S.Ct. 2151 (2013). The district court denied his petition, again for not filing it under § 2255, and he appealed. We affirm.

         I. Background

         We begin with a brief synopsis of Poe v. United States, which makes up the early background of Poe's case. We then summarize the present case, which relates to his § 2241 petition, filed on October 28, 2014.

         A. Poe v. United States

         In 1996, Poe was charged with various narcotics-related offenses, including engaging in a CCE, in violation of 21 U.S.C. § 848(c). At Poe's trial, the district court provided the following jury instructions to find violation of the CCE statute: "You must unanimously find that the defendant committed at least two violations of the federal drug laws, but you do not have to agree on which two violations." Poe v. United States, 468 F.3d at 475 (emphasis in original and internal quotation marks omitted). The jury convicted Poe of one count of CCE and nine other counts of narcotics-related offenses, and the district court sentenced him to 360 months' imprisonment. This court affirmed on direct appeal.

         On June 1, 1999, the Supreme Court decided Richardson, which held that for a CCE conviction under § 848(c), the underlying individual violations are elements of the CCE and therefore require jury unanimity. 526 U.S. at 824. In light of Richardson, the jury instructions used in Poe's trial were erroneous.

         On July 16, 1999, Poe filed a § 2241 petition, challenging his CCE conviction under Richardson. Fourteen months later, on September 19, 2000, the district court dismissed Poe's § 2241 petition as procedurally improper, without prejudice, and advised him to file a § 2255 petition, which he did so on June 18, 2001. Twenty-one months later, on March 17, 2003, the district court denied Poe's § 2255 petition as untimely. Poe appealed, and this court granted him a certificate of appealability.

         On November 6, 2006, this court decided Poe v. United States, affirming the denial of Poe's § 2255 petition. 468 F.3d at 478. In that decision, we began by determining that Poe's § 2255 motion was untimely. Id. at 476. We then held that "[t]here is no legal basis for Poe to claim he was entitled to have his improper § 2241 petition construed as a § 2255 motion for purposes of AEDPA's statute of limitations." Id. at 477 (emphasis in original). In conclusion, we noted that even if Poe's § 2255 petition had been timely, it would have "run up against this circuit's case law holding Richardson error to be harmless where the jury unanimously convicted the defendant of two or more separate drug offenses along with the CCE offense. ... Poe was separately convicted of five felony counts of distributing marijuana or possessing marijuana with intent to distribute." Id. at 478 n. 8. (citations omitted).

         B. Current 28 U.S.C. ...


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