United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
William T. Lawrence, Judge
Thomas Durkin is confined in this District and seeks a writ
of habeas corpus. The pleadings and the expanded record show
that Durkin was convicted in the United States District Court
for the Southern District of California for conspiracy to
conduct enterprise affairs through a pattern of racketeering
activity in violation of 18 U.S.C. § 1962(d). United
States v. Martinez, 657 F.3d 811 (9th Cir. 2011). He is
now serving a term of life imprisonment. Id.
Following this direct appeal, Durkin's motion for relief
pursuant to 28 U.S.C. § 2255 was denied. His motion to
file a second or successive 28 U.S.C. § 2255(a) motion
was then also denied.
present action followed. Durkin claims that Johnson v.
United States, 135 S.Ct. 2551, 2557 (2015), renders his
RICO sentence invalid. This contention was made in
Durkin's second or successive application and was
rejected by the Ninth Circuit, which explained that Durkin
has not shown that the statute under which he was convicted
and sentenced contains language similar to that found to be
unconstitutionally vague in Johnson v. United
States, 135 S.Ct. 2551 (2015). Accordingly, the
applicant has not made a prima facie showing under 28 U.S.C.
§ 2255(h) . . . To the extent the applicant seeks to
challenge the application of U.S.S.G. § 2E1.1(a) under
Johnson, he is not entitled to authorization.
See Beckles v. United States, 137 S.Ct. 886, 895
(2017) (holding that “the advisory Sentencing
Guidelines are not subject to a vagueness challenge under the
Due Process Clause and that § 4B1.2(a)'s residual
clause is not void for vagueness”).
No. 16-72192 (9th Cir. April 17, 2017).
also argues that Apprendi v. United States, 530 U.S.
466 (2000), requires the jury to make the determination of
whether the racketeering activity warrants a life-sentence,
“but the jury's special verdict found [him] subject
to th[at] sentence[ ].” United States v.
Martinez, 657 F.3d 811, 816 (9th Cir. 2011). See
United States v. Benabe, 654 F.3d 753, 777 (7th Cir.
2011)(“After the jury had reached its verdicts of
guilty on most charges, including the RICO conspiracy charge,
the district court instructed the jury to determine whether
the defendants had been criminally involved in four of the
murders included in the indictment. Such a jury finding was
necessary to comply with the requirements of
Apprendi . . .”); United States v.
Caba, 241 F.3d 98, 101 (1st Cir.
2001)(“Apprendi only applies when the disputed
‘fact' enlarges the applicable statutory maximum
and the defendant's sentence exceeds the
invokes the Savings Clause of 28 U.S.C. § 2255(e), which
permits a habeas challenge to the legality of an inmate's
conviction or sentence in those cases where 28 U.S.C. §
2255 is “‘inadequate or ineffective to test the
legality of [the] detention.'” Kramer v.
Olson, 47 F .3d 214, 217 (7th Cir. 2003) (quoting 28
U.S.C. § 2255(e)). Whether § 2255 is inadequate or
ineffective depends on “whether it allows the
petitioner ‘a reasonable opportunity to obtain a
reliable judicial determination of the fundamental legality
of his conviction and sentence.'” Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (en banc)
(quoting Davenport, 147 F.3d at 609).
constitutional claims could have been raised-and in fact were
raised, at least in part- in his prior challenges.
Accordingly, § 2255 was adequate to test the legality of
his detention, and he may not press these claims in a §
2241 petition. “The essential point is that a prisoner
is entitled to one unencumbered opportunity to receive a
decision on the merits.” Potts v. United
States, 210 F.3d 770 (7th Cir. 2000). Durkin had that
opportunity and used it. He is not entitled to more.
on the foregoing, Durkin has sought relief pursuant to 28
U.S.C. § 2241 under circumstances which do not permit or
justify the use of that remedy. This is apparent from the
pleadings and the history of the sentence he now challenges.
Durkin's enhanced sentence is not constitutionally infirm
for the reasons he asserts. His petition for writ of habeas
corpus is denied.
consistent with this ...