# Karr v. Kallis

> District Court, C.D. Illinois · July 29, 2019

URL: https://www.frixlaw.com/law-library/cases/10135522

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** July 29, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

GARY PAUL KARR, )
)
Petitioner, )
)
v. ) Case No. 19-cv-1037-JES
)
STEVE KALLIS, Warden, )
)
Respondent. )

ORDER AND OPINION
Now before the Court is Petitioner Gary Paul Karr’s Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 (d/e 1). Petitioner is currently incarcerated at the Pekin Federal
Correctional Institution in Pekin, Illinois. Also before the Court is Respondent’s Motion to
Dismiss (d/e 8). For the reasons set forth below, Respondent’s Motion to Dismiss (d/e 8) is
GRANTED and Petitioner’s Petition (d/e 1) is DISMISSED pursuant to 28 U.S.C. § 2255(e).
BACKGROUND
In December 1999, a federal grand jury in the United States District Court for the
Western District of Texas charged Petitioner with conspiracy to kidnap, in violation of 18 U.S.C.
§§ 1201(c), 2 (Count 1); conspiracy to interfere with commerce by robbery and extortion, in
violation of 18 U.S.C. §§ 1951 and 2 (Count 2); interstate travel to commit a crime of violence
(robbery), in violation of 18 U.S.C. §§ 1952 and 2 (Count 3); conspiracy to engage in a monetary
transaction in criminally derived property, in violation of 18 U.S.C. §§ 1956(h), 1957 and 2
(Count 4); and interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2314 and
2 (Count 5). Indictment, United States v. Karr, Case No. 1:99-cr-00274-SS (W.D. Tex.)
(hereinafter, “Crim.”), (d/e 5).
Prior to trial, the Government filed a notice of its intent to use prior convictions to
enhance Petitioner’s sentence under the “three strikes” provision of 18 U.S.C. § 3559(c).
Information and Notice (Crim., d/e 36). Pursuant to § 3559(c)(1), “a person who is convicted in
a court of the United States of a serious violent felony shall be sentenced to life imprisonment if .
. . the person has been convicted (and those convictions have become final) on separate prior

occasions in a court of the United States or of a State of . . . 2 or more serious violent felonies.”
Id. “Serious violent felony” is defined to include specific enumerated offenses, including
kidnapping and robbery, and conspiracy to commit any of the enumerated offenses. 18 U.S.C.
§ 3559(c)(2)(F)(i). Additionally, a “serious violent felony” is “any other offense punishable by a
maximum term of imprisonment of 10 years or more that has as an element the use, attempted
use, or threatened use of physical force against the person of another or that, by its nature,
involves a substantial risk that physical force against the person of another may be used in the
course of committing the offense.” 18 U.S.C § 3559(c)(2)(F)(ii). The statute further states that:
Robbery, an attempt, conspiracy, or solicitation to commit robbery; or an offense
described in paragraph (2)(F)(ii) shall not serve as a basis for sentencing under
this subsection if the defendant establishes by clear and convincing evidence that

(i) no firearm or other dangerous weapon was used in the offense and no
threat of use of a firearm or other dangerous weapon was involved in the
offense; and

(ii) the offense did not result in death or serious bodily injury (as defined in
section 1365) to any person.”

18 U.S.C. § 3559(3)(A).
Here, the Government’s Notice identified eight predicate serious violent felony
convictions of Petitioner: (1) Indecent Liberties with a Child, Kane County, Illinois, Case No.
66-CI-3200; (2) Robbery, Cook County, Illinois, Case No. 72-81; (3) Robbery, Cook County,
Illinois Case No. 72-80; (4) Armed Robbery, Cook County Illinois, Case No 72-14; (5) Armed
Robbery, Jefferson County, Wisconsin, Case No. 74-454; (6) Armed Robbery, Kane County,
Illinois, Case No. 74-CF-44028; (7) Aggravated Kidnapping, Lake County, Illinois, Case No. 75-
CF-104; and (8) Armed Robbery, McHenry County, Illinois, Case No. 74-4634. Information and
Notice (Crim., d/e 36).
Petitioner proceeded to trial in May 2000. The jury found Petitioner not guilty of Count

1, but guilty of Counts 2, 3, 4, and 5. Jury Verdict (Crim., d/e 78-1). The jury found that the
Government had not proven beyond a reasonable doubt that the offense charged in Count 3
resulted in the death of another person. Id.
The United States Probation Office prepared a presentence report, finding that Petitioner
was subject to mandatory life sentences on Counts 2 and 3 pursuant to § 3559(c)(3). PSR ¶¶ 8,
53 (d/e 10). Prior to sentencing, Petitioner filed a Motion to Quash the Government’s
Information and Notice regarding the applicability of § 3559(c)(3). See Motion to Quash (Crim.,
d/e 84). In his Motion, Petitioner argued that he did not have two or more serious violent
felonies, because his most recent four convictions resulted in a concurrent sentence, so could

only count for one violent felony, and the other four convictions (one conviction for indecent
liberties with a child, and three concurrent convictions for robbery and armed robbery) did not
qualify as serious violent felonies. Id. at 2. Petitioner also objected to the PSR’s finding that his
convictions on Counts 2 and 3 qualified as serious violent felonies because this determination
had not been made by the jury. See PSR Addendum, Defendant’s Objections at 24 (d/e 10).
A sentencing hearing was held on August 17, 2000. The district judge denied the Motion
to Quash and the overruled Petitioner’s objection to the PSR. Crim., Aug. 17, 2000 Oral Order.
Petitioner was sentenced to a mandatory life imprisonment sentence on Counts 2 and 3, and a
115-month imprisonment sentence on Counts 4 and 5, to be served concurrently. Judgment
(Crim., d/e 87).
Petitioner appealed, challenging, in part, whether a jury should have determined whether
Counts 2 and 3 qualified as serious violent felonies pursuant to § 3559(c). United States v. Karr,
No. 00-50785 (5th Cir.). The Fifth Circuit denied his appeal. United States v. Karr, 273 F.3d

1098 (5th Cir. 2001) (unpublished). The Supreme Court denied certiorari. Karr v. United States,
534 U.S 1150 (2002). Petitioner filed his initial motion under 28 U.S.C. § 2255 in 2003, arguing
various grounds of ineffective assistance of counsel. Motion (Crim., d/e 113). The district court
denied the motion. Order (Crim. d/e 119).
Petitioner next filed a motion for authorization to file a successive § 2255 motion with
the Fifth Circuit in May 2014, raising his prior argument that his sentence under § 3559(c)
should have been presented to a jury and were not. Motion (Crim., d/e 127). The Fifth Circuit
denied authorization to file a successive § 2255 motion in August 2014. Order (Crim. d/e 162).
Petitioner filed another motion for authorization to file a successive § 2255 motion with

the Fifth Circuit on June 28, 2016. In re: Gary Karr, No. 16-50771(5th Cir.). He argued that, in
light of the Supreme Court’s decision in United States v. Johnson, 135 S. Ct. 2551 (2015), which
held that the residual clause of the definition of violent felony in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, the similarly worded
residual clause in the definition of serious violent felony in § 3559(c)(2)(F)(ii) is also
unconstitutionally vague. Motion (Crim., d/e 163). Accordingly, he argued, he should be
resentenced without the § 3559(c) sentencing enhancement. Id. The Fifth Circuit denied his
motion for authorization, finding that, while the language in the two residual clauses is similar,
“Johnson only addresses the ACCA’s residual clause and no other statute or guideline.” In re:
Gary Karr, No. 16-50771 (5th Cir. Aug. 10, 2016).
Petitioner has now filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241
(d/e 1). He argues that the residual clause of § 3559(c)(2)(F)(ii) is also unconstitutionally vague
in light of United States v. Johnson, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct.

1204 (2018). Accordingly, he argues his conviction for conspiracy to commit Hobbs Act
robbery (conspiracy to interfere with commerce by robbery and extortion in violation of 18
U.S.C. §§ 1951 and 2) (Count 2) and his conviction for interstate travel to commit a crime of
violence (robbery), in violation of 18 U.S.C. §§ 1952 and 2 (Count 3) are not violent felonies
within the meaning of § 3559(c). If these arguments are correct, he would not be subject to the
§ 3559(c) sentencing enhancement on Count 2 and his conviction for Count 3 would be void.
Respondent has filed a Motion to Dismiss (d/e 8), arguing his claims do not satisfy the
requirements of the 28 U.S.C. § 2255(e) savings clause. Petitioner filed a Reply (d/e 13).
Petitioner has also filed a Notice (d/e 15) seeking to additionally rely on the Supreme Court’s

decision in United States v. Davis, 139 S.Ct. 2319 (2019). This Order follows.
LEGAL STANDARD
Generally, federal prisoners who seek to collaterally attack their conviction or sentence
must proceed by way of motion under 28 U.S.C. § 2255, the so-called “federal prisoner’s
substitute for habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368, at *1 (7th Cir.
Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). The exception to
this rule is found in § 2255 itself: a federal prisoner may petition under § 2241 if the remedy
under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C.
§ 2255(e). Under the “escape hatch” of § 2255(e), “[a] federal prisoner should be permitted to
seek habeas corpus only if he had no reasonable opportunity to obtain earlier judicial correction
of a fundamental defect in his conviction or sentence because the law changed after his first 2255
motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Thus, the Seventh Circuit has
held that “alternative relief under § 2241 is available only in limited circumstances: specifically,
only upon showing “(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), cert. denied sub nom. Montana v. Werlich, 137 S. Ct. 1813, 197 L. Ed.
2d 758 (2017) (citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)).
DISCUSSION
Petitioner’s claims rely on the Supreme Court cases of United States v. Johnson, 135

S.Ct. 2551 (2015), Sessions v. Dimaya, 138 S.Ct. 1204 (2018), and, now, United States v. Davis,
139 S.Ct. 2319 (2019). These cases are all cases of constitutional interpretation, as they found
the residual clauses in various statutes to be unconstitutionally vague. See Johnson, 135 S.Ct. at
2563 (holding that residual clause of the definition of violent felony in 18 U.S.C.
§ 924(e)(2)(B)(ii) is unconstitutionally vague); Dimaya, 138 S.Ct. at 1215-16 (holding that the
residual clause of 18 U.S.C. § 16, as incorporated into the Immigration and Nationality Act’s
definition of aggravated felony, was unconstitutionally vague); Davis, 139 S.Ct. at 2324 (holding
that the residual clause of the definition of violent felony in 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague). The savings clause is restricted to cases of statutory interpretation
because appropriate cases of constitutional interpretation can be brought in second or successive
§ 2255 motions under § 2255(h)(2). Accordingly, Petitioner’s claims fail to fall within the
§ 2255(e) saving clause and must be dismissed. See Montana, 829 F.3d at 783.
Petitioner, however, argues that his case presents “another type of structural problem with
§ 2255” that should be allowed to proceed under the § 2555(e) savings clause. He argues that he

has a constitutional claim that was not previously available, but for which he cannot obtain
authorization for in the Fifth Circuit, and that this situation presents another structure problem
like the ones identified in Davenport and Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en
banc). The structural problem identified in Webster was that § 2255 prohibited a petitioner from
presenting newly discovered evidence would show that a type of penalty—the death penalty—is
not constitutionally permitted. Webster, 784 F.3d at 1138.
The Court does not find that Petitioner has identified a structural problem with § 2255.
Unlike Webster and unlike cases based on statutory decisions that can proceed under the savings
clause due to the structural problem outlined in Davenport, there is a process within § 2255 that

allows appropriate constitutional arguments to proceed on successive § 2255 motions. Petitioner
used this process and filed an application to file a successive § 2255 motion in the Fifth Circuit.
In re: Gary Karr, No. 16-50771 (5th Cir. Aug. 10, 2016) (finding “Johnson only addresses the
ACCA’s residual clause and no other statute or guideline.”). That the Fifth Circuit denied his
application to file a successive § 2255 motion does not make § 2255 ineffective or inadequate.
See Brown v. Caraway, 719 F.3d 583, 597 (7th Cir. 2013) (“A motion under § 2255 could
reasonably be thought “inadequate or ineffective to test the legality of [the prisoner's] detention”
if a class of argument were categorically excluded, but when an argument is permissible but fails
on the merits there is no problem with the adequacy of § 2255.”); Taylor v. Gilkey, 314 F.3d 832,
835 (7th Cir. 2002) (the savings clause is concerned with “procedures rather than outcomes”).
Petitioner also argues in his reply that Dimaya is actually a case of statutory
interpretation. Reply at 1 (d/e 13). He provides no support for this argument, and he is incorrect.
In Dimaya, the Supreme Court held that the residual clause of 18 U.S.C. § 16, as incorporated

into the Immigration and Nationality Act’s definition of aggravated felony, was
unconstitutionally vague. 138 S.Ct. at 1215-16. However, while the Supreme Court necessarily
had to interpret the meaning of § 16 to determine if it was constitutional, its holding was to find
that the statute was unconstitutional, making it a case of constitutional interpretation.
The Court also notes that United States v. Davis, 139 S.Ct. 2319 (2019), does not change
the Court’s analysis here. Davis held that the categorical approach applies to the definition of
violent felony in 18 U.S.C. § 924(c) and that the residual clause in § 924(c)(3)(B), which
provides for longer prison sentences for anyone who uses a firearm in connection with federal
crimes “that by [their] nature, involve[e] a substantial risk that physical force against the person

or property of another may be used in the course of committing the offense,” is
unconstitutionally vague. Id. at 2324. While this case provides additional support for
Petitioner’s underlying argument that § 3559(c)’s residual clause is also vague, it does not allow
Petitioner to meet the requirements of the § 2255(e) savings clause. Like Johnson and Dimaya,
Davis is a case of constitutional interpretation. To the extent that Davis can be read to impact the
constitutionality of § 3559(c), Petitioner must proceed within § 2255 and seek authorization to
file a successive § 2255 motion in the Fifth Circuit.
CONCLUSION
For the reasons set forth above, Respondent’s Motion to Dismiss (d/e [8]) is GRANTED
and Petitioner Gary Paul Karr’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (d/e
[1]) is DISMISSED pursuant to 28 U.S.C. § 2255(e). This matter is now CLOSED.

Signed on this 29th day of July, 2019.
/s/ James E. Shadid
James E. Shadid
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10135522. Public record. Not legal advice.