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Brown v. Krueger

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

February 1, 2019

ANTONIO M. BROWN, Petitioner,
v.
JEFFREY E. KRUEGER, Respondent.

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

          Hon. William T. Lawrence, Senior Judge

         Petitioner Antonio M. Brown is currently incarcerated at the United States Penitentiary in Terre Haute, Indiana. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Brown challenges his sentence arguing that Hobbs Act Robbery, 18 U.S.C. § 1951, is not a “crime of violence” under Sessions v. Dimaya, 138 S.Ct. 1204 (2018). For the reasons explained below, the petition for writ of habeas corpus is dismissed.

         A. Background

         Brown was indicted on September 17, 2015 in the Eastern District of Missouri. On April 20, 2016, Brown pled guilty to one count of interference with commerce by robbery, in violation of 18 U.S.C. § 1951 (Count 1); and one count of possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 2). United States v. Brown, 1:15-cr-108-SNLJ (E.D. Mo. 2017) (hereinafter “Crim. Dkt.”).

         On May 24, 2017, the district court sentenced Brown to a combined sentence of 240 months' imprisonment (120 months' imprisonment as to Count 1, to be followed by a consecutive sentence of 120 months' imprisonment for Count 2). Crim. Dkt. 70. Brown did not appeal.

         On September 28, 2017, Brown filed a motion pursuant to 28 U.S.C. § 2255 claiming ineffective assistance of counsel and a supplemental motion claiming that his Hobbs Act Robbery was improperly classified as a crime of violence. See Brown v. United States, No. 1:17-cv-174 (E.D. Mo. 2017). His motion was dismissed, and the Court found that Hobbs Act robbery was a crime of violence. Brown appealed to the Eighth Circuit and his certificate of appealability was denied on August 7, 2018.

         On May 22, 2018, Brown filed a petition for permission to file a successive habeas petition with the Eighth Circuit arguing that his Hobbs Act robbery is not a crime of violence in light of Dimaya. See Brown v. United States, No. 18-2103 (8th Cir. 2018). On October 5, 2018, the Eighth Circuit denied Brown permission to file a successive petition. Id.

         Brown now files a petition under § 2241 again arguing that his Hobbs Act robbery is not a crime of violence in light of Dimaya.

         B. Discussion

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Shepherd v. Krueger, 911 F.3d 861, 862 (7th Cir. 2018); Webster v. Daniels, 784 F.3d 1123, 1124 (7th Cir. 2015). Under very limited circumstances, however, a prisoner may employ Section 2241 to challenge his federal conviction or sentence. Webster, 784 F.3d at 1124. This is because “[§] 2241 authorizes federal courts to issue writs of habeas corpus, but § 2255(e) makes § 2241 unavailable to a federal prisoner unless it ‘appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of [the] detention.'” Roundtree v. Krueger, 910 F.3d 312, 313 (7th Cir. 2018). Section 2255(e) is known as the “savings clause.” The Seventh Circuit has held that § 2255 is “'inadequate or ineffective' when it cannot be used to address novel developments in either statutory or constitutional law, whether those developments concern the conviction or the sentence.” Roundtree, 910 F.3d at 313 (citing e.g., In re Davenport, 147 F.3d 605 (7th Cir. 1998); Brown v.Caraway, 719 F.3d 583 (7th Cir. 2013); Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc)).

         The Seventh Circuit construed the savings clause in In re Davenport holding:

A procedure for postconviction relief can be fairly termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.

In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).

         The Seventh Circuit has explained that, to fit within the savings clause following Davenport, a petitioner must meet three conditions: “(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); Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); see also Roundtree, 910 F.3d at 313 (acknowledging circuit split regarding Davenport conditions ...


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