White v. Christensen

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

WILLIAM A. WHITE,

Petitioner, `

v. Case No. 19-CV-1217-SPM

D. SPROUL,

Respondent.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Petitioner William A. White (“White”) is incarcerated at the USP-Marion. On

February 21, 2013, White was found guilty in the Northern District of Illinois, 08-

CR-851, and was sentenced to 42 months, concurrent with sentence imposed in 08-

CR-54, Western District of Virginia. White filed this habeas corpus action pursuant

to 28 U.S.C. §2241 to challenge the constitutionality of his confinement – in particular

his conviction and sentence for solicitation to commit crime of violence/influencing

juror, as well as claims of actual innocence. (Doc. 1). White argues, pursuant to United

States v. Davis, 139 S.Ct. 2319 (2019), that his offense of soliciting a violent felony no

longer qualifies as a “violent felony” for purposes of 18 U.S.C. § 373, and as such, he

is actually innocent and the conviction must be vacated. Id.

On May 6, 2020, Melissa Day, Federal Public Defender appointed in this

matter on March 16, 2020 (Doc. 3), filed a Motion to Withdraw as Attorney. (Doc. 6).

Within said Motion, Day alleged that her office was appointed to consider the

applicability of the Supreme Court’s finding that the residual clause of 18 U.S.C. §

924(c) was unconstitutional to White’s assertions. See Davis, 139 S.Ct. 2319.

However, because White was convicted of violating 18 U.S.C. § 373, solicitation to

commit a crime of violence, not 18 U.S.C. § 924 (c), Day was granted leave to

withdraw. (Doc. 8). White did not voluntarily dismiss this action; instead, he filed his

Notice of Intent to Proceed. (Doc. 9).

Respondent moved to dismiss the Petition arguing that White is not entitled

to relief under 28 U.S.C. § 2241. (Doc. 11). Respondent further claims that White

erroneously relies on Davis and that this Court does not have subject matter

jurisdiction. Id. White filed a Response, arguing that this Court has jurisdiction

under 18 U.S.C. § 3231 and requesting that the Court apply Davis in a different way,

to the elements clause, not the residual clause. (Doc. 13).

Additional Facts and Procedural History

White was found guilty by a jury of one count of solicitation to commit crime of

violence/influencing juror in violation of 18 U.S.C. § 373, 1503. (Doc. 11-1). In

February 2013, he was sentenced to 42 months in the Northern District of Illinois

Case No. 08-cr-851 for soliciting the commission of a violent federal crime against a

juror. Id. at p. 2. The sentence was ordered to be served concurrently with the

sentence in 08-CR-54, Western District of Virginia. Id.

The charge was based upon a website, “Overthrow.com”, created and

maintained by White that purported to be affiliated with the “American National

Socialist Workers Party” (“ANSWP”). (Doc. 11-2, p.1). The ANSWP was an

organization that, according to the Overthrow.com website, claimed was comprised

of a “convergence of former [white supremacy] ‘movement’ activists who grew

disgusted with the general garbage that ‘the movement’ has attracted and who

formed the ANSWP under the Command of Bill White.” (Doc. 11-2, pp. 1-2). Members

of the ANSWP were described as “National Socialists … who fight for white working

people.” (Doc. 11-2, p. 2).

According to the Indictment, between September 11, 2008 and October 11,

2008, White engaged in felony conduct that has an element the use, attempted use,

or threatened use of force against the person of Juror A1, in violation of the laws of

the United States, and under circumstances corroborative of that intent, solicited and

otherwise endeavored to persuade another person to injure Juror A on account of a

verdict assented to by Juror A, in violation of Title 18, United States Code Section

1503. Id. Specifically, as part of the solicitation, inducement and endeavor to

persuade, on September 11, 2008 White caused to be displayed on the front page of

“Overthrow.com”, a posting entitled, “The Juror Who Convicted Matt Hale”, which

stated: “Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt

Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and

[his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone

number], and [his/her] office is [phone number].”. Id. As further part of the

solicitation, inducement, and endeavor to persuade, on September 12, 2008, White

caused to be displayed on the frontpage of “Overthrow.com” a posting entitled, “[Juror

A] Update – Since They Blocked the first photo”. (Doc. 11-2, p. 3). This posting read:

1 Juror A was foreperson of the jury that convicted Matthew Hale, the leader of a white supremacist

organization known as the World Church of the Creator, with multiple counts of solicitation of the

murder of United States District Judge Joan Humphrey Lefkow and obstruction of justice in the

Northern District of Illinois.

“Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale.

Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat

[name]. [His/Her] phone number is [phone number], cell phone [phone number], and

[his/her] office is [phone number]. Note that [University A] blocked much of [Juror

A’s] information after we linked to [his/her] photograph.”. Id.

Appeal and Resentencing

White unsuccessfully appealed his conviction in a timely fashion. (Doc. 11). He

has also filed numerous post-conviction motions attacking his conviction, as well as

motions pursuant to Sections 2241 and 2255. Id.

Applicable Law

1. Jurisdiction

Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not

be employed to raise claims of legal error in conviction or sentencing; they may only

challenge the execution of sentence. See Valona v. United States, 138 F.3d 693 (7th

Cir 2003). Thus, aside from the direct appeal process, a prisoner who has been

convicted in federal court is ordinarily 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 (7th Cir. 2003). He may not;

however, file a “second or successive” § 2255 motion unless a panel of the appropriate

court of appeals certifies that such motion contains either: (1) newly discovered

evidence “sufficient to establish by clear and convincing evidence that no reasonable

factfinder would have found the movant guilty of the offense”; or (2) “a new

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” 28 U.S.C. § 2255(h).

Under very limited circumstances, a prisoner may also challenge his federal

conviction or sentence under 28 U.S.C. § 2241. Section 2255(e) contains a “savings

clause” (also referred to as the “safety-valve” clause, see Reynolds v. United States,

Case No. 18-cv-691 (M.D. Pa., April 4, 2018)), which authorizes a federal prisoner to

file a § 2241 petition where the remedy under § 2255 is “inadequate or ineffective to

test the legality of his detention.” 28 U.S.C. § 2255(e). See United States v. Prevatte,

300 F.3d 792 (7th Cir. 2002). The fact that a petitioner may be barred from bringing

a successive §2255 petition is not, in and of itself, sufficient to render it an inadequate

remedy. In re Davenport, 147 F.3d 605 (7th Cir. 1988)(§ 2255 limitation on filing

successive motions does not render it an inadequate remedy for a prisoner who had

filed a prior § 2255 motion).

Instead, under § 2241, a petitioner must demonstrate the inability of a § 2255

motion to cure the defect in the conviction because of a structural problem inherent

in § 2255. See Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015). “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 defect in his conviction as having been imprisoned for a nonexistent

offense.” Davenport, 147 F3d. at 611 (emphasis added).

Following Davenport and its progeny, the Seventh Circuit has developed a

three-part test for determining whether § 2255 is inadequate or ineffective so as to

trigger the savings clause:

(1) The federal prisoner must seek relief based upon a decision of

statutory interpretation, as opposed to a decision of constitutional

interpretation, which the inmate could raise in a second or

successive § 2255 motion;

(2) The statutory rule of law in question must apply retroactively to

cases on collateral review and could not have been invoked in a first

§ 2255 motion; and,

(3) A failure to afford the prisoner collateral relief would amount to an

error “grave enough” to constitute “a miscarriage of justice”.

See Worman v. Entzel, 953 F.3d 1004 (7th Cir. 2020); Montana v.

Cross, 829 F.3d 775 (7th Cir. 2016); Beason v. Marske, 926 F.3d 932

(7th Cir. 2019); Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019);

Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013).

2. Actual Innocence

White claims that he actually innocent and the conviction must be vacated.

(Doc.1). A credible claim of actual innocence “requires petitioner to support his

allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.“ Schlup v. Delo, 115 S. Ct. 851, 865 (1995).

The Schlup standard permits habeas review of defaulted claims only in the

“extraordinary case” where the petitioner has demonstrated that “more likely than

not, in light of the new evidence, no reasonable juror would find him guilty beyond a

reasonable doubt—or, to remove the double negative, that more likely than not any

reasonable juror would have reasonable doubt.” House v. Bell, 126 S. Ct. 2064, 2077

(2006).

The third element/factor of the three prong Davenport analysis regarding

“miscarriage of justice” is often equated to actual innocence. See Sawyer v. Whitley,

505 U.S. 333 (1992). Additionally, the “miscarriage of justice” exception is concerned

with actual as compared to legal innocence. Id. at 339.

More recently, the Supreme Court held in McQuiggin v. Perkins, that “a

credible showing of actual innocence may allow a prisoner to pursue his constitutional

claims on the merits, notwithstanding the existence of a procedural bar to relief.” 133

S. Ct. 1924, 1931 (2013). In so holding, the Supreme Court reaffirmed the Schlup

standard for a credible showing of actual innocence, cautioning that “tenable actual-

innocence gateway pleas are rare” and describing the Schlup standard as

“demanding” and “seldom met.” McQuiggin, 133 S. Ct. at 1928.

Analysis

In the instant case, White’s Petition fails to satisfy the first Davenport

condition and his reliance on Davis is misplaced. White was neither convicted of a

gun offense nor was he convicted under Section 924(c)(3)(A). (Doc. 11-1). White was

charged and convicted of solicitation to commit a crime of violence under U.S.C. §§

373 and 1503. Section 1503 states in pertinent part:

“Whoever corruptly, or by threats of force, or by any threatening letter

or communication, endeavors to influence, intimidate, or impede any

grand or petit juror … on account of any verdict or indictment assented

to by him … shall be punished as provided in subsection (b).” 18 U.S.C.

§ 1503.

Davis held that the residual clause in 18 U.S.C. §924(c)(3)(B) is

unconstitutionally vague, violating “the twin constitutional pillars of due process and

separation of powers. Davis, 139 S.Ct at 2325. Section 924(c)(1)(A) provides for

enhanced penalties for a person who uses or carries a firearm “during and in relation

to”, or who possesses a firearm “in furtherance of,” and federal “crime of violence or

drug trafficking crime.” Section 924(c)(3) defines the term “crime of violence” as “an

offense that is a felony” and:

(A) Has an element the use, attempted use, or threatened use of physical

force against the person or property of another, [the “force clause”];

(B) That by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course

of committing the offense [the “residual clause”].

18 U.S.C. §924 (c)(3). After Davis, only a crime of violence that fits the definition set

out in the force clause of Section 924(c)(3)(A) will support an enhanced penalty.

In Davis, the Supreme Court concluded that the residual clause in 18 U.S.C. §

924 (c)(3)(B) was unconstitutionally vague. 139 S.Ct. 2324 (emphasis added).

Therefore, Davis is a case of constitutional interpretation. As such, a claim based on

Davis could be raised in a successive § 2255 motion if permission is timely sought and

obtained.2 His claim cannot be pursued in a §2241 Petition under the “savings

clause”. Because he fails to satisfy the first condition under Davenport, any review of

the second and third factors is unnecessary.

Petitioner’s assertion that jurisdiction is established in this case under 18

U.S.C. § 3231 is also erroneous and misguided. (Doc. 13). Section 3231 states in

pertinent part,

“The district courts of the United States shall have original

jurisdiction, exclusive of the courts of the States, of all

2 The Court makes no comment on the potential merits of White’s claims if he were to bring them in

the context of a successive § 2255 motion.

offenses against the laws of the United States.” 18 U.S.C.

§ 3231.

Jurisdiction in the underlying criminal matter, to wit: U.S.A. v. White, Case

No. 08-cr-851, Dkt. No. 5 (N.D. Ill. October 21, 2008), was appropriate under Section

3231 as it was a criminal matter and fell under the auspices of Criminal Procedure.

This pending matter, White v. Sproul, Case No. 19-cv-1217, Dkt. No. 1 (S.D. Ill, Nov.

6, 2019) falls under the realm of habeas corpus cases and was filed as such. (Doc. 1)

Finally, White’s claims that he is actually innocent of the solicitation of a

violent felony are predicated upon the holding in Davis, and are not predicated upon

newly discovered evidence and/or the factors set forth in Schlup. (Doc. 1). It is also

irrelevant as he cannot overcome the first Davenport factor, so there is no need to

examine the third any further.

Conclusion

For the foregoing reasons, William A. White’s Petition for writ of habeas corpus

under 28 U.S.C. § 2241 (Doc. 1), is DENIED and this case is DISMISSED WITH

PREJUDICE.

The Clerk of Court is directed to enter judgment accordingly.

It is not necessary for Petitioner to obtain a certificate of appealability from

this disposition of his § 2241 Petition. Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000).

If Petitioner wishes to appeal, he may file a notice of appeal with this Court within

60 days of the entry of judgment. Fed. R. App. P. 4(a)(1)(B)(iii). A proper and timely-

filed motion pursuant to Federal Rule of Civil Procedure 59(e) may toll the 60-day

appeal deadline. A Rule 59(e) motion must be filed no more than 28 days after the

entry of the judgment, and this 28-day deadline cannot be extended.

A motion for leave to appeal in forma pauperis must identify the issues

Petitioner plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If Petitioner

does choose to appeal and is allowed to proceed IFP, he will be liable for a portion of

the $505.00 appellate filing fee (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 857 (7th Cir. 1999); Sloan v. Lesza, 181 F.3d 857 (7th Cir. 1999); Lucien v.

Jockisch, 133 F.3d 464 (7th Cir. 1998).

IT IS SO ORDERED.

DATED: December 3, 2020

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

United States District Judge