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Bonty v. Krueger

United States District Court, S.D. Indiana, Terre Haute Division

August 20, 2018

MICHAEL D. BONTY, Petitioner,
v.
J.E. KRUEGER Warden, Respondent.

          ENTRY DENYING PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND DIRECTING ENTRY OF FINAL JUDGMENT

          Hon. William T. Lawrence, Judge

         Petitioner Michael Bonty was convicted by a jury in the United States District Court for the Southern District of Illinois of transporting a minor in interstate commerce with intent to engage in criminal sexual activity, three counts of attempting to intimidate a juvenile witness in violation of 18 U.S.C. § 1512, and one count of being a felon in possession of a firearm. He seeks relief from his conviction and sentence pursuant to 28 U.S.C. § 2241. For the following reasons, Bonty's habeas petition must be denied.

         I. Procedural Background

         Bonty's convictions were based on a finding that Bonty and an associate had lured two teenage girls from a mall in St. Louis, Missouri to a home in East St. Louis, Illinois and that Bonty had sex with one of the girls and later took them home. Shortly thereafter, he saw the girls with local law enforcement and left threatening voicemail messages on one of the girls' phones. His convictions were affirmed on appeal. United States v. Bonty, et al, 383 F.3d 575, 578-80 (7th Cir. 2004).[1]

         In November 2005, Bonty challenged his conviction and sentence in a motion for relief under 28 U.S.C. § 2255. That motion was denied, Bonty v. United States, 3:05-cv-00797 (S.D. Ill.), Dkt. No. 7, and the Seventh Circuit denied a certificate of appealability. In June 2007, Bonty filed a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure arguing that one of the victims had committed fraud on the Court. That motion was denied on the merits. Then in September of 2008, Bonty filed a petition for a writ of audita querela arguing that his sentence was unconstitutional under United States v. Booker, 543 U.S. 220 (2005), and the district court dismissed the petition. See Bonty v. United States, No. 3:08-cv-00652 (S.D. Ill.), Dkt. No. 1, 4. Bonty filed a third § 2255 motion in June, 2016 under Johnson v. United States, 135 S.Ct. 2251 (June 26, 2015). However, the Seventh Circuit denied Bonty's application to file a successive § 2255 motion and his motion was dismissed for lack of jurisdiction. See Bonty v. United States, No. 3:16-cv-00704 (S.D. Ill.), Dkt. No. 4. Bonty filed two more petitions to file a successive motion for relief pursuant to 28 U.S.C. § 2255. Both were denied. He then filed this petition for a writ of habeas corpus.

         II. Standard under § 2241

         A § 2255 motion is the presumptive means by which a federal prisoner can challenge his conviction or sentence. Davis v. United States, 417 U.S. 333, 343 (1974). A prisoner is generally limited to bringing only one motion under § 2255. Id. However, even if he has already pursued relief under § 2255, a prisoner may be able to challenge his federal conviction or sentence under 28 U.S.C. § 2241.

         The “savings clause” in 28 U.S.C. § 2255(e) authorizes a federal prisoner to file a § 2241 petition in limited circumstances, that is when § 2255 is “inadequate or ineffective to test the legality of his detention.” Poe v. LaRiva, 834 F.3d 770, 772 (7th Cir. 2016); 28 U.S.C. § 2255(e). “Whether section 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) (quoting In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998)). The Seventh Circuit has distilled this analysis into a three-part test:

A petitioner who seeks to invoke the savings clause of § 2255(e) in order to proceed under § 2241 must establish: (1) that he relies on “not a constitutional case, but a statutory-interpretation case, so [that he] could not have invoked it by means of a second or successive section 2255 motion, ” (2) that the new rule applies retroactively to cases on collateral review and could not have been invoked in his earlier proceeding, and (3) that the error is “grave enough . . . to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding, ” such as one resulting in “a conviction for a crime of which he was innocent.”

Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016) (citing Davenport, 147 F.3d at 611). The Seventh Circuit has also explained that § 2255 is inadequate or ineffective when the petitioner has discovered new evidence that would reveal that the Constitution categorically prohibits a certain penalty. Webster, 784 F.3d at 1136. It is the petitioner's burden to establish that his remedy under § 2255 is inadequate or ineffective. See Id. at 1141.

         III. Discussion

         Bonty seeks relief under § 2241 arguing that his rights were violated when certain witnesses, including the victim, were allowed to testify by video and that his convictions for witness tampering are improper. The respondent argues that Bonty cannot obtain habeas relief under § 2241 because he has failed to satisfy the savings clause by showing that § 2255 is inadequate or ineffective to test the legality of his detention. Each of Bonty's claims is discussed below.

         A. Testimony by Video

         Bonty's first claim is that his due process rights and his rights under the Confrontation Clause of the Sixth Amendment were violated when “three key witnesses” were allowed to testify by video. This claim does not satisfy the elements of the savings clause as set forth by the Seventh Circuit. First, this is a constitutional claim, not a claim of statutory interpretation. See Montana, 829 F.3d at 783. Second, even if the rule were one of statutory interpretation, Bonty does not rely on a new rule that has been applied retroactively to cases on collateral review. See Id. He also does not present new evidence that could not have been presented previously or that would show that his conviction was unconstitutional. See Webster, 784 F.3d at 1139. The Seventh Circuit stated this when it denied his second application for leave to file a successive motion for relief pursuant to § 2255. Bonty v. United States, No. 17-2413 (7th Cir. July 18, 2017) (“None of Bonty's ...


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