United States District Court, S.D. Indiana, Terre Haute Division
TONY E. EMERY, Petitioner,
ENTRY DISMISSING PETITION FOR A WRIT OF HABEAS
William T. Lawrence, Senior Judge
Tony E. Emery brings the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. For the
reasons explained below, because § 2241 does not provide
Mr. Emery an avenue for the relief he seeks, his petition
must be denied.
Standards Governing § 2241 Proceedings
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974); United States v. Bezy, 499
F.3d 668, 670 (7th Cir. 2007). However, § 2255(e)
provides that if § 2255 is “inadequate or
ineffective to test the legality of his detention, ”
Mr. Emery may file an application for a writ of habeas corpus
under 28 U.S.C. § 2241. Section 2255(e) is known as the
“savings clause.” 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 In re Davenport, 147 F.3d 605,
609 (7th Cir. 1998)). To properly invoke the savings clause
of 28 U.S.C. § 2255(e), a petitioner is required to show
“something more than a lack of success with a section
2255 motion, ” i.e., “some kind of
structural problem with section 2255.” Id.
section 2255 motion is inadequate or ineffective if the
following three requirements are met: “(1) the
petitioner must rely on a case of statutory interpretation
(because invoking such a case cannot secure authorization for
a second § 2255 motion); (2) the new rule must be
previously unavailable and apply retroactively; and (3) the
error asserted must be grave enough to be deemed a
miscarriage of justice, such as the conviction of an innocent
defendant.” Davis v. Cross, 863 F.3d 962, 964
(7th Cir. 2017).
Emery was convicted by a jury of killing a federal witness
and sentenced to life imprisonment by the Western District of
Missouri. See United States v. Emery, No.
97-cr-6004-W-HFS (W.D. Mo. 1997). His judgment was affirmed
by the Eighth Circuit in 1999. See United States v.
Emery, 186 F.3d 921, 927 (8th Cir. 1999) (holding the
trial court properly instructed the jury that “two or
more persons may kill an individual when they actively
participate with each other in a killing, as by jointly
assaulting and injuring her in a manner that could result in
death, when the assaults are made with the intent to kill,
even if you are unable to determine who struck the fatal
Emery filed a § 2255 motion which was denied in 2003 by
the Western District of Missouri. See Emery v. United
States, No. 01-cv-6005-W-HFS (W.D. Mo. 2001) (Memorandum
and Order, dk 30, signed April 18, 2003). In Mr. Emery's
§ 2255 motion, he claimed that he should have been given
a new trial based on newly discovered evidence that his
accomplice told another inmate that he struck fatal blow.
Id. at p. 8. But, the district court found that as
long as Mr. Emery had actively participated in killing, it
was immaterial whether Mr. Emery or his accomplice struck the
fatal blow, such that the admission of the new evidence would
not have produced acquittal. Id. It also found that
even if the accomplice was more culpable in a moral sense, as
the most active murderer, and deserved more than 22
years' imprisonment, this would not relieve Mr. Emery
from legal responsibility or a life sentence, as the person
with the principal motive, the planner and recruiter, and an
active participant in the killing. Id.
Emery appealed the district court's decision and the
Eighth Circuit denied the certificate of appealibility.
See Emery v. United States, No. 04-1595 (8th Cir.
2004). The Supreme Court denied his petition for writ of
certiorari on May 16, 2005. See Emery v. United
States, 544 U.S. 1042 (2005).
March 19, 2018, Mr. Emery filed an amended motion to vacate
which was denied as untimely and frivolous on May 3, 2018.
See Emery v. United States, No. 5:01-cv-6005-HFS
(W.D. Mo. 2001). On May 25, 2018, Mr. Emery filed a notice of
petition for relief pursuant to § 2241 followed.
Emery seeks relief pursuant to § 2241, arguing that
“collateral estoppel principles embodied in the Fifth
Amendment guarantee against Double Jeopardy/Due Process
precludes the trial of the Petitioner on” his criminal
indictment. See Dkt. No. 1. Apparently, Mr. Emery
contends that both he and Herbert J. Emery cannot both be
convicted for the death of Christine A. Elkins pursuant to 18
U.S.C. § 1512(a)(1)(C), in separate criminal cases in
the Western District of Missouri.
United States argues that this action should be dismissed
because Mr. Emery has raised these same arguments on other
occasions and nothing has changed since his most recent
habeas petition was denied in the Western District of
Missouri. Put differently, § 2255 cannot be
“inadequate” considering Mr. Emery raised this