The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RANDALL DAVID DUE, )
)
Petitioner, )
)
vs. ) Case No. 19-cv-1340-NJR
)
)
WARDEN WERLICH, FCI- )
GREENVILLE, and BUREAU OF )
PRISONS CENTRAL –WASHINGTON, )
DC, )
)
Respondents. )
MEMORANDUM AND ORDER
ROSENSTENGEL,ChiefJudge:
Petitioner Randall David Due, an inmate of the Federal Bureau of Prisons (“BOP”)
currently incarcerated at Federal Correctional Institution at Greenville, IL (“FCI Greenville”),
brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the validity of his
conviction in United States v. Due, Case No. 12-cr-344-002 (Neb. 2012) (“Criminal Case”). Due
asserts that because of numerous constitutional violations during his criminal proceedings, he is
entitled to immediate release from custody (Doc. 1, p. 9).
This matter is now before the Court for review of the Petition pursuant to Rule 4 of the
Federal Rules Governing Section 2254 Cases in United States District Courts, which provides that
upon preliminary consideration by the district judge, “[i]f it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b) gives this Court the
authority to apply the rules to other habeas corpus cases.
Background
On December 5, 2014, Due was sentenced in the District of Nebraska to 120 months’
imprisonment after a jury convicted him on one count of filing false liens or encumbrances in
violation of 18 U.S.C. § 1521, one count conspiracy to file false liens in violation of 18 U.S.C.
§1521, and five counts of filing false liens or encumbrances in violation of 18 U.S.C. §§ 1521 and
3147.It does not appear that Due filed a direct appeal of his Judgment, although he filed a number
of interlocutory appeals during the course of his criminal proceedings,as well as two petitions for
writ of mandamus.United States v. Due, Case Nos. 14-1263, 14-2017, 14-2338, and 14-2674 (8th
Cir.); In re: Randall Due, Case Nos. 14-1385 and 14-1137 (8thCir.).
On November 4, 2019, in Due’s criminal case, the District of Nebraska received a
document requesting miscellaneous relief which the district court found was not in the nature of a
postconviction pleading, and the document was returned (Criminal Case, Doc. 576). Due
subsequently appealed that Order, and the appeal is still pending. See United States v. Due, Case
No. 19-cr-3466 (8th Cir.). He has not filed a challenge to his conviction and sentence pursuant to
28 U.S.C. § 2255.
While incarcerated at Federal Correctional Institute Gilmer in Glenville, West Virginia, he
filed a petition for relief under Section 2241. Due v. Saad, Case No. 18-cv-29-GMG (N.D. W.V.)
(“First Section 2241 Petition”). Due asserted eight grounds for relief including that: (1) he was
actually, legally, and factually innocent, (2) there was insufficient evidence at trial to demonstrate
he knowingly filed a false lien or that he knowingly conspired to do so, (3) the trial court
improperly admitted perjured testimony by a judge, (4) his Fifth Amendment rights were violated
by the trial court’s rulings on the admissibility of testimony, (5) post-conviction attempts to obtain
relief were inadequate and ineffective because the judges who presided over those attempts had a
financial conflict of interest and refused to recuse, (6) the trial court erred in its jury instructions,
(7) the trial court improperly admitted evidence at trial, and (8) the trial court lacked jurisdiction
to hear the underlying case (First Section 2241 Petition at Doc. 12, p. 7). On December 19, 2018,
Due’s petition was dismissed without prejudice because he did not seek relief under any
permissible grounds and the relief sought could have been raised on direct appeal or through a
Section 2255 petition (Id.at Doc. 15).He appealed the dismissal, but the appeal was dismissed for
failure to prosecute. Due v. Saad, Case No. 19-6317 (4thCir. 2019).
On December 9, 2019, Due filed the pending Petition (Doc. 1). He asserts seven grounds
of relief including that: (1) the trial judge denied his Fifth Amendment rights, (2) the trial judge
improperly allowed perjured testimony from government witnesses, (3) the government failed to
prove all essential elements of the crime beyond a reasonable doubt, (4) the jury instructions did
not contain the allegations claimed in the indictment, (5) the government failed to produce a
“contractual negotiable instrument” that would bind Due to the government’s private copy-righted
by-laws, (6) judicial officers of the court aided and abetted in the cover-up of the stated violations,
and (7) judicial officers of the court violated their “oath/contract” to support the Constitution
during the trial (See Doc. 1, pp. 6-8).
Discussion
A prisoner who has been convicted in federal court is generally limited to challenging his
conviction and sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the court which
sentenced him. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). Under very limited
circumstances, a prisoner may employ 28 U.S.C. § 2241 to challenge his conviction and sentence.
More specifically, Section 2255(e) contains a “savings clause” which authorizes a federal prisoner
to file a Section 2241 petition where the remedy under Section 2255 is “inadequate or ineffective
to test the legality of his detention.” “A procedure for postconviction relief can fairly be 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). In order to trigger the
savings clause, a petitioner must meet three conditions: (1) he must show that he relies on a new
statutory interpretation case rather than a constitutional case; (2) he must show that he relies on a
decision that he could not have invoked in his first Section 2255 motion and that applies
retroactively; and (3) he must demonstrate that there has been a “fundamental defect” in his
conviction or sentence that is grave enough to be deemed a miscarriage of justice. Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013); see also Brown v. Rios, 696 F3d 638, 640 (7th Cir.
2012). The Seventh Circuit has made it clear that “there must be some kind of structural problem
with [S]ection 2255 before [S]ection 2241 becomes available. In other words, something more
than a lack of success with a [S]ection 2255 motion must exist before the savings clause is
satisfied.” Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
Due satisfies none of these requirements. A number of Due’s claims have already been
raised in his First Section 2241 Petition and those claims were rejected because he did not qualify
for relief under the savings clause. He offers no new grounds which would fall under the savings
clause. He does not rely on a new statutory interpretation case. He also fails to explain how a
Section 2255 proceeding would be “inadequate and ineffective”. He is challenging the validity of
his conviction based on claims which could have beenraised on direct appeal or in a Section 2255
proceeding.Thus, Section 2241 is not the proper vehicle for review of Due’s conviction.
Disposition
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2241 (Doc. 1) is DISMISSED with prejudice. All pending motions are DENIED as moot.
If Due wishes to appeal this dismissal, he may file a notice of appeal with this Court within
the time allotted in Fed. R. App. P. 4(a)(1)(B). A motion for leave to appeal in forma pauperis
should set forth the issues Due plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If Due
does choose to appeal and is allowed to proceed IFP, he will be required to pay a portion of the
$505.00 appellate filing fee in order to pursue his appeal (the amount to be determined based on
his prison trust fund account records for the past six months) irrespective of the outcome of the
appeal. See Fed. R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch,
133 F.3d 464, 467 (7th Cir. 1998). A timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the appeal deadline. It is not necessary for Due to obtain a certificate of
appealability in an appeal from this petition brought under Section 2241. Walker v. O'Brien, 216
F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: 2/12/2020 TI
wet A ocaitegl
NANCY J. ROSENSTENGEL
Chief U.S. District Judge