Whitman v. Keys

Opinion

1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Mar 23, 2020 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 HARRY J. WHITMAN, No. 2:19-cr-00198-SAB 9 Petitioner, 10 v. ORDER DISMISSING 11 JAMES KEYS, Superintendent Airway 28 U.S.C. § 2241 PETITION 12 Heights Correction Center, 13 Respondent. 14 15 Pending before the Court is Harry J. Whitman’s Petition for a Writ of 16 Habeas Corpus Under 28 U.S.C. § 2241, ECF No. 1. Mr. Whitman is an inmate at 17 the Airway Heights Corrections Center. He is serving a sentence that was imposed 18 in the District Court for the Southern District of Texas.1 He is challenging the 19 portion of his sentence that was imposed pursuant to 18 U.S.C. § 924(a).23 20 21

22 1 Mr. Whitman was charged with nine counts in the Superseding Indictment: (1) 23 Conspiracy to commit bank robbery and to use or carry a firearm during a crime of 24 violence; (2),(6) Armed bank robbery; (3),(7) Use of a firearm during a crime of 25 violence, robbery; (4), (8) Possession of a firearm, having three previous 26 convictions for violent felony (5),(9) Possession of a sawed off shotgun. Counts 1- 27 5 relate to a bank robbery on or about February 26, 1996; Counts 6-9 relate to a 28 bank robbery on or about March 7, 1996. 1 In his Petition, Mr. Whitman argues he received an improper ACCA 2 sentence enhancement, which renders him actually innocent of being an Armed 3 Career Offender. ECF No. 1. He asserts he never had an unobstructed procedural 4 shot at presenting his challenge since the enhanced sentence exceeding the 5 statutory maximum for the crime was fundamentally defective, and the evidence 6 that formed the legal basis for his challenge did not become available until he had 7 exhausted his direct appeal and his § 2255 motion was denied. Id. He states 8 counsel was unable to locate the Illinois Appellate Courts decision vacating his 9 two prior armed robbery convictions that were used as predicate convictions to 10 support an ACCA finding and enhanced sentence pursuant to 18 U.S.C. § 924(a), 11 and he was only able to acquire it during the course of applying for clemency in 12 2016. Id. He asserts he is entitled to relief under § 2255’s savings clause because 13 the Illinois Appellate Court’s decision constitutes new evidence that clearly 14

15 2 On November 8, 1999, Mr. Whitman was sentenced as follows: Count 1 – 60 16 months; Counts 2, 4, 6 and 8 – 264 months; Counts 5 & 9–120 months, to be 17 served concurrently with Counts 2, 4, 6, and 8; Count 3–120 months, to be served 18 consecutively with Counts 1, 2, 4-8; and Count 7–240 months, to be served 19 consecutively with Counts 3, 1-6, 8 and 9. 20 3 As part of the criminal proceeding, the United States filed a Notice of Intent to 21 Seek Enhanced Sentencing under 18 U.S.C. § 924(e). it identified seven prior 22 offenses from the state of Illinois that met the definitions of violent felony: (1) Jan. 23 14, 1978 Cook County conviction for Armed Robbery; (2) Jan. 13, 1978 Cook 24 County conviction for Armed Robbery; (3) Jan. 20, 1978 Cook County conviction 25 for Armed Robbery; (4) October 23, 1981 Cook County conviction for Armed 26 Robbery; (5) October 23, 1981 Cook County conviction for Armed Robbery; (6) 27 December 4, 1981 Cook County conviction for Armed Robbery; and (7) December 28 4, 1981 Cook County conviction for Armed Robbery. ECF No. 1-1, Ex. B. 1 demonstrates he is actually innocent of the ACCA sentencing enhancement 2 because the vacated convictions do not trigger the ACCA enhancement. Id. He 3 maintains that based on this new evidence his enhanced 264-month sentence is 4 illegal “as it exceeds the statutory maximum under the U.S.S.G. for 18 U.S.C. § 5 2113 and 922(g).” Id. 6 The United States argues Mr. Whitman is not factually innocent and cannot 7 show he was denied an unobstructed procedural shot at presenting his claim. As 8 such, he does not fall within the “escape hatch” of 28 U.S.C. § 2255. The United 9 States asks the Court to dismiss his Petition. 10 Legal Standard 11 A district court must determine at the outset whether a petition filed by a 12 federal prisoner is pursuant to 28 U.S.C. § 2241 or 28 U.S.C. § 2255, because 13 Congress has given jurisdiction over these petitions to different courts. Hernandez 14 v. Campbell, 204 F.3d 861, 865-66 (9th Cir. 2000). A petition under § 2241 must 15 be heard in the district of confinement, whereas a petition under § 2255 must be 16 heard by the sentencing court. Id. at 865. 17 A federal prisoner who seeks to challenge the legality of confinement must 18 generally rely on a § 2255 motion to do so. Stephens v. Herrera, 464 F.3d 895, 897 19 (9th Cir. 2006) (“The general rule is that a motion under 28 U.S.C. § 2255 is the 20 exclusive means by which a federal prisoner may test the legality of his detention, 21 and that restrictions on the availability of a § 2255 motion cannot be avoided 22 through a petition under 28 U.S.C. § 2241.” (citation omitted)). 23 There is an exception to this general rule. Under the “escape hatch” of 24 § 2255, a federal prisoner may file a § 2241 petition if, and only if, the remedy 25 under § 2255 is “inadequate or ineffective to test the legality of his detention.” Id. 26 (internal quotation marks omitted). A prisoner may file a § 2241 petition under the 27 escape hatch when the prisoner “(1) makes a claim of actual innocence, and (2) has 28 not had an unobstructed procedural shot at presenting that claim.” Id. at 898. 1 (internal quotation marks omitted). If a prisoner’s claims qualify for the escape 2 hatch of § 2255, the prisoner may challenge the legality of the sentence through a 3 § 2241 petition in the custodial court. Harrison v. Ollison, 519 F.3d 952, 956 (9th 4 Cir. 2008). In determining whether a petitioner had an unobstructed procedural 5 shot to pursue his claim, the court asks whether the petitioner’s claim did not 6 become available until after a federal court decision. Id. at 960. In other words, 7 courts should consider: (1) whether the legal basis for petitioner’s claim ‘did not 8 arise until after he had exhausted his direct appeal and first § 2255 motion;’ and (2) 9 whether the law changed ‘in any way relevant’ to petitioner's claim after that first § 10 2255 motion.” Id. Notably, this standard does not mandate that the legal basis be a 11 “new rule” or that it be one of “constitutional law,” as is required for second or 12 successive 2255 motions pursuant to 28 U.S.C. § 2255(h)(2). Id. Thus, the escape 13 hatch standard is in this respect lower than the standard for successive motions. Id. 14 Analysis 15 In its response, the United States cites to a Ninth Circuit case that is 16 seemingly on point. See Marrero v. Ives, 682 F.3d 1190 (9th Cir. 2012). In that 17 case, the petitioner argued he was “actually innocent” of being a career offender 18 under the Sentencing Guidelines because two of his prior convictions were now 19 considered “related” and therefore he would not qualify as a career offender. Id. In 20 rejecting his arguments, the Ninth Circuit held:

21 Whatever the merits of Petitioner’s argument that he would not 22 qualify as a career offender were he to be sentenced under the post– 2007 Guidelines, his claim is not one of actual innocence. In this 23 circuit, a claim of actual innocence for purposes of the escape hatch of 24 § 2255 is tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S. 614, 623 (1998). ‘[A]ctual 25 innocence’ means factual innocence, not mere legal insufficiency.” 26 Bousley, 523 U.S. at 623, 118 S.Ct. 1604. Id. 27 28 1 The Circuit concluded the petitioner’s claim that he was incorrectly 2 treated as a career offender was a purely legal claim that had nothing to do 3 with factual innocence; and therefore was not a cognizable claim of “actual 4 innocence” for the purposes of qualifying to being a § 2241 petition under 5 the escape hatch. Id. While Mr. Whitman agrees the Ninth Circuit generally 6 will not entertain, through the escape hatch, claims that a noncapital 7 sentencing enhancement was improperly applied, he asks that this Court 8 invoke an exception to this rule because he received a sentence for which he 9 was statutorily ineligible. 10 The Court declines to do so. Rather, Mr. Whitman’s Petition should 11 be dismissed because he cannot meet the second prong to qualify for the 12 “escape hatch.” Although Mr. Whitman maintains that he only obtained the 13 1984 Illinois Court of Appeals decision vacating his convictions in 2016, a 14 simple search on Westlaw indicates that the opinion was published in West’s 15 North Eastern Reporter and was available in 1984. See People v. Martin, 121 16 Ill. App. 3d 196, 459 N.E. 2d 279 (Ill. App. 1984).456 Thus, it is not newly

17 4 Mr. Whitman was previously known as Harry Martin. 18 5 In Martin, Mr. Whitman argued that since he was convicted of two counts of 19 armed robbery and two counts of armed violence, and all counts arose from the 20 same single act committed during the robbery, only one count of armed violence 21 can stand and the other three counts must be vacated. Id. at 292. The Illinois Court 22 of Appeals agreed that the two counts of armed robbery and the two counts of 23 armed violence can result in only one conviction and sentence. Id. It noted that 24 since armed robbery and armed violence are both Class X felonies and of equal 25 seriousness, the conviction and sentence could stand on either offense. Id. It 26 concluded that while some courts considered the armed robbery more specific and 27 the more serious offense, it accepted the choice of the State and Mr. Whitman who 28 agreed that the armed violence conviction should stand. Id. The Illinois Court of 1 discoverable evidence. Mr. Whitman’s claim that his counsel and attorney 2 for the Government was not able to locate this case in 1999 is not well taken. 3 Because Mr. Whitman cannot show that his claim ‘did not arise until after he 4 had exhausted his direct appeal and first § 2255 motion,’ he is not entitled to 5 relief under § 2241. The Court does not have jurisdiction over Mr. 6 Whitman’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241. 7 // 8 // 9 // 10 // 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19

20 Appeals reversed the judgments of convictions and sentences for armed robbery in 21 count 1 and 2, for armed violence in count 3, and for unlawful use of weapons in 22 count 6, but affirmed the judgments of conviction and sentences for armed 23 violence in count 4 and for unlawful use of weapons in count 7. Id. at 215-16. 24 6 Federal Rule of Evidence 201 allows a court to take judicial notice of a fact “not 25 subject to reasonable dispute in that it is either (1) generally known within the 26 territorial jurisdiction of the trial court, or (2) capable of accurate and ready 27 determination by resort to sources whose accuracy cannot reasonably be 28 questioned.” Fed.R.Evid. 201(b). l Accordingly, IT IS HEREBY ORDERED: 2 1. Mr. Whitman’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, ECF No. 1, is DISMISSED. 2. The Clerk of Court is directed to enter judgment in favor of Defendant 5|| and against Plaintiff. 3. The Court certifies that an appeal of this Order will not be taken in 7\| good faith. 8 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order and forward copies to counsel and to the United States Attorney’s Office for the Eastern District of Washington. 11 DATED this 23rd day of March 2020. 12 13 14 ‘ Sfetleyld See tran 16 Stanley A. Bastian United States District Judge 18 19 20 21 22) 23 24 25 26 27 28 ORDER DISMISSING 28 U.S.C. § 2241 PETITION ~ 7