April 7, 2016
from the United States District Court for the Southern
District of Indiana, Terre Haute Division No. 2:14-cv-00324 -
William T. Lawrence, Judge.
Easterbrook, Kanne, and Sykes, Circuit Judges.
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.
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).
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.
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.
Poe v. United States
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.
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.
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.
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
Current 28 U.S.C. ...