Hunter v. Kallis

• Court: District Court, C.D. Illinois
• Decided: July 31, 2019
• Docket: 1:18-cv-01317
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION

RONALD HUNTER,

Petitioner,

v. Case No. 18-1317 Criminal Case No. 92-cr-81058 UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM ORDER AND OPINION Presently before the Court is Petitioner Ronald Hunter’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (D. 11.) For the reasons stated herein, the Petition is DENIED, and this case is CLOSED. BACKGROUND In the 1980s and 1990s, Timothy Patton was the leader of a large drug conspiracy that maintained its power and profitability through violence in Detroit, Michigan.2 Petitioner and other individuals were members of the conspiracy.3 On December 27, 1992, Petitioner shot and killed Monica Johnson as she exited a Detroit nightclub.4 Johnson was purported to have stolen a large amount of drug proceeds from the conspiracy.5 On April 17, 1997, a grand jury returned a fourth superseding indictment charging Petitioner with aiding and abetting and intentional killing of Johnson in violation of 18 U.S.C. § 2 and 21 U.S.C. § 848(e)(1)(A); use or carrying of a firearm in violation of 18 U.S.C. § 924(c); and

1 Citations to the Docket in this case are abbreviated as “D. __.” 2 United States v. Sellers, 9 F. App’x 335, 337 (6th Cir. 2001). 3 Id. 4 Id. 5 Id. various drug violations, including conspiracy to possess with intent to distribute cocaine base.6 After a jury trial, Petitioner was found guilty of 18 U.S.C. § 2 and 21 U.S.C. § 848(e)(1)(A), for the intentional killing of Johnson, and 18 U.S.C. § 924(c), for the use of a firearm in her murder.7 On November 16, 1998, Petitioner was sentenced to a term of life imprisonment on the intentional killing charge and a consecutive term of 60 months for the firearm charge.8 Petitioner

appealed his sentence, and the Sixth Circuit issued an order denying his appeal.9 PROCEDURAL HISTORY Since his incarceration in 1998, Petitioner has filed four motions under 28 U.S.C. § 2255 collaterally attacking his conviction. On February 19, 2003, Petitioner filed his first § 2255 motion, which outlined a claim for ineffective assistance of counsel, in the U.S. District Court for the Eastern District of Michigan.10 On March 14, 2003, Petitioner filed a subsequent § 2255 motion, in the same court, which outlined the same claim for relief.11 On January 4, 2004, the district court denied those motions in a single order.12 On February 25, 2004, Petitioner filed a Notice of Appeal based on the district court’s combined denial of his first and second § 2255 motions.13 On October 28, 2004, the Sixth Circuit

issued an Order denying Petitioner a certificate of appealability because he failed to make a substantial showing of the denial of a constitutional right.14

6 Memorandum Opinion and Order, 92-cr-81058 (E.D. Mich. Sept. 19, 2005), ECF No. 807. 7 Id. 8 Memorandum Opinion and Order, 92-cr-81058 (E.D. Mich. Sept. 19, 2005), ECF No. 807 at 2. 9 Id. 10 Motion, USA v. Crawford, 92-cr-81058 (E.D. Mich. Feb. 19, 2003), ECF No. 755 at 11. 11 Motion, USA v. Crawford, No. 92-cr-81058 (E.D. Mich. Mar. 14, 2003), ECF No. 759 at 11. 12 Order, USA v. Crawford, No. 92-cr-81058 (E.D. Mich. Jan. 05, 2004), ECF No. 785. 13 Notice, USA v. Crawford, No. 92-cr-81058 (E.D. Mich. Feb. 25, 2004), ECF No. 788. 14 Order, USA v. Crawford, No. 92-cr-81058 (E.D. Mich. Nov. 4, 2004), ECF No. 799. On December 10, 2007, Petitioner filed his third § 2255 motion.15 In his motion, he argued the indictment against him was defective because it failed to charge him with engaging in a continued criminal enterprise.16 By statute, “a second or successive [2255] motion must be certified…by a panel of the appropriate court of appeals” before a district court may consider it.

28 U.S.C. § 2255(h) (effective Jan. 7, 2008). Based on § 2255(h), the district court ruled that it did not have jurisdiction to entertain Petitioner’s third § 2255 motion, as he failed to obtain appellate certification, and denied his successive attempt at collateral relief. Hunter v. United States, No. 07-15267, 2008 WL 345511, at *2 (E.D. Mich. Feb. 7, 2008). On April 14, 2011, Petitioner filed his fourth § 2255 motion.17 The district court again determined the motion was successive, to which it did not have jurisdiction to entertain, and transferred the motion to the Sixth Circuit for authorization.18 The Sixth Circuit agreed that the motion was successive and that Petitioner had not received appellate certification to file it.19 Furthermore, it ruled Petitioner failed to make a prima facie showing that (i) newly discovered evidence existed which sufficiently established that no reasonable fact-finder would have found

him guilty of the offense; or that (ii) a previously unavailable rule of constitutional law existed that the Supreme Court had made retroactive to cases on collateral review.20 As such, it denied his fourth § 2255 motion.21 On August 30, 2018, Petitioner filed the instant Petition, under 28 U.S.C. § 2241, with this Court, arguing that retroactive application of the Supreme Court’s holding in Rosemond v. United States, 572 U.S. 65 (2014), exonerates him of his 1997 convictions. (D. 1. at 14, 16.) Petitioner

15 Motion, USA v. Crawford, No. 92-cr-81058 (E.D. Mich. Dec. 10, 2007), ECF No. 828. 16 Id. 17 Motion, USA v. Crawford, No. 92-cr-81058 (E.D. Mich. Apr. 14, 2011), ECF No. 873. 18 Order, USA v. Crawford, No. 92-cr-81058 (E.D. Mich. May 04, 2011), ECF No. 875. 19 Id. 20 Order, USA v. Crawford, No. 92-cr-81058 (E.D. Mich. Feb. 29, 2012), ECF No. 876. 21 Id. asserts the prosecution at his criminal trial failed to proffer sufficient evidence to convict him of the firearm enhancement under 18 U.S.C. § 924(c), using the aiding and abetting statute, 18 U.S.C. § 2, according to the advanced knowledge requirements outlined in Rosemond. Id. Throughout his Petition, Petitioner also makes other merit-based arguments. (D. 1.)

In response, the Government argues that the Petition should be denied because Rosemond is not applicable to Petitioner’s firearm conviction under § 924(c). (D. 6 at 6.) Specifically, it argues, Petitioner was not convicted of his firearm enhancement via the aiding and abetting statute. Id. Rather, the aiding and abetting charge involved the intentional killing of Johnson. Id. Therefore, Petitioner’s ability to proceed under 28 U.S.C. § 2241 ends, as the clarification outlined in Rosemond is inapposite to Petitioner’s situation. Id. The Government also asserts that, even if Petitioner could make a claim under Rosemond, he must first satisfy the procedural requirements for a § 2241 petition outlined in In re Davenport, 147 F.3d 606, 611 (7th Cir. 1998); which he fails to do. (D. 6. at 6-7.) As a result, the Government contends his Petition should be denied on procedural grounds. Id. This Order follows.

LEGAL STANDARD A federal prisoner challenging the validity of his sentence is ordinarily required to bring his challenge via a § 2255 motion in the sentencing court. Taylor v. Gilkey, 314 F.3d 832, 834 (7th Cir. 2002). However, a federal prisoner whose claim falls within the scope of § 2255 may file a writ of habeas corpus under 28 U.S.C. § 2241 in very limited circumstances, as provided by the savings clause of § 2255(e). Id. at 835. The savings clause preserves the defendant’s original remedy in those occasional cases in which a motion under § 2255 “is inadequate or ineffective to test the legality of his detention.” Id. at 834 (quoting 28 U.S.C. § 2255(e)). The Seventh Circuit has ruled that in order to invoke the savings clause of § 2255(e), a prisoner must satisfy three requirements, known as Davenport conditions, based on a change in the law. Davenport, 147 F.3d at 611. After determining that there is a change in the law, the defendant must establish that: (1) 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 § 2255 motion; (2) the new rule applies retroactively to cases on collateral review and could not have been invoked in his earlier proceeding; and (3) the error is “grave enough . . . to be deemed a miscarriage of justice corrigible . . . 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 606). To satisfy the first Davenport requirement, the petitioner must rely on a case of statutory interpretation. Davis v. Cross, 863 F.3d 962, 964 (7th Cir. 2017). The second Davenport condition has two components: retroactivity and prior unavailability of the challenge. Montana v. Cross, 829 F.3d at 783. To satisfy the retroactivity requirement, the petitioner must show that the change

in the law is substantive. Id. A petitioner satisfies the unavailability requirement in his § 2241 petition only “if ‘[i]t would have been futile’ to raise a claim in the petitioner’s original ‘section 2255 motion, as the law was squarely against him.’” Id. at 784 (quoting Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015)). Finally, to satisfy the third Davenport requirement, “the error asserted must be grave enough to be deemed a miscarriage of justice, such as the conviction of an innocent defendant.” Davis, 863 F.3d at 964 (citing Montana, 829 F.3d at 783). DISCUSSION Petitioner presents several procedural and merits-based arguments in his Petition. As noted in the preceding section, and asserted by the Government, Petitioner must first demonstrate that his Petition satisfies the three Davenport conditions before the Court can move to the merits of his claim. Here, it is clear that he does not. I. Petitioner Incorrectly Asserts Rosemond is Applicable to His Case

Petitioner contends he is entitled to relief under Rosemond, which clarified the interplay between aiding and abetting liability under 18 U.S.C. § 2 and the substantive firearms offense in 18 U.S.C. § 924(c). (D. 1 at 14, 16.) Specifically, he alleges the jury instructions at his criminal trial permitted a firearms conviction without requiring a finding that he had advanced knowledge that a firearm would be used in the killing of Johnson. (D. 1 at 14-15.) Rosemond, he contends, makes clear that such knowledge is necessary for conviction under the aiding and abetting statute. Id. Petitioner’s reading of Rosemond’s effect on the interaction between 18 U.S.C. § 924(c) and aiding and abetting under 18 U.S.C. § 2 is accurate, but the interaction is not applicable to him. According to Petitioner’s presentence investigation report, it does not appear he was convicted of the firearm enhancement via 18 U.S.C. § 2, as was the case in Rosemond. (D. 8.)

Rather, the aiding and abetting charge, outlined in Count 4, was tied to the murder of Johnson in furtherance of a continuing criminal enterprise.22 Although Rosemond helped to clarify the interaction between 18 U.S.C. § 924(c) and 18 U.S.C. § 2, there is no interaction in the case at hand. Petitioner’s aiding and abetting conviction under 18 U.S.C. § 2 was combined with the intentional killing charge under 21 U.S.C. § 848(e)(1)(A) in Count 4, and was not combined with the § 924(c) firearms charge outlined in Count 5. As a result, the clarification in Rosemond is inapplicable to Petitioner’s convictions, his ability to proceed procedurally under § 2241 is terminated, and his Petition is DENIED.

22 Order, USA v. Crawford, 92-cr-81058 (6th Cir. 2013), ECF No. 886. CONCLUSION In his Petition under 28 U.S.C. § 2241, Petitioner asserts that the retroactive application of the heightened aiding and abetting standard detailed in Rosemond would result in any reasonable juror finding him not guilty of his aiding and abetting charge in 1997. While Rosemond resolved

the interaction between aiding and abetting under 18 U.S.C. § 2, and a firearms charge under § 924(c), there is no such interaction at play in the instant case. As such, this Court finds that Rosemond is not applicable to Petitioner’s case. Accordingly, the [1] Petition for Writ of Habeas Corpus under § 2241 is DENIED. The Clerk of Court is directed to close this case.

Entered on July 31, 2019. /s/ Michael M. Mihm Michael M. Mihm United States District Judge