Taylor v. Werlich

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DUWAYNE TAYLOR,

Petitioner,

v. Case No. 3:19-CV-00816-NJR

T.G. WERLICH, WARDEN,

Respondent.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Petitioner Duwayne Taylor, an inmate in the Bureau of Prisons, filed this pro se

Habeas Corpus action pursuant to 28 U.S.C. § 2241 on July 26, 2019. (Doc. 1). Taylor

invokes the Supreme Court’s decision in Rehaif v. United States, 588 U.S. __, 139 S. Ct. 2191

(2019), as the basis for his claim. Respondent filed a response to the petition on February

20, 2020, denying Taylor’s alleged grounds for relief.

RELEVANT FACTS AND PROCEDURAL HISTORY

Taylor was indicted in 2008 and entered a guilty plea on one count of being a Felon

in Possession of a Firearm pursuant to 18 U.S.C. § 922(g)(1) on May 27, 2009. United States

v. Taylor, Case No. 08-cr-20059 at Doc. 15 (C.D. Ill.). In his plea agreement, Taylor agreed

that he had three prior convictions which qualified him as an Armed Career Criminal

under the Armed Career Criminal Act (“ACCA”) and that prior to October 27, 2008, he

had been convicted of “Felony Damage to Property, Robbery, Aggravated Discharge of

a Firearm, Felony Criminal Trespass, Aggravated Battery, and additional charges”

(Doc. 14-1 at 5). Taylor was sentenced to 180 months’ imprisonment, five years of

supervised release, and a special assessment of $100. Id. at Doc. 20.

Taylor did not file a direct appeal. He did, however, file a motion under 28 U.S.C.

§ 2255 in the Central District of Illinois asserting that the ACCA was unconstitutionally

applied and that his counsel provided ineffective representation. The motion was denied.

Taylor v. United States, Case No. 10-cv-2109-MPM-DGB, Doc. 11 (C.D. Ill. Oct. 20, 2010).

In 2015, Taylor filed a Section 2241 petition in this district relying on Johnson v. United

States, 135 S. Ct. 2551 (2015). That petition was denied without prejudice, with leave to

refile as an authorized successive motion under Section 2255. Taylor v. Cross, Jr., Case No.

15-cv-0735-DRH, Docs. 12, 16 (S.D. Ill. Sept. 11, 2015 and Oct. 23, 2015). The Seventh

Circuit denied Taylor’s request to bring a successive 2255 motion. Taylor v. United States,

No. 16-2555, Doc. 7 (7th Cir. July 18, 2016).

Taylor now brings this motion pursuant to 28 U.S.C. § 2241 and the savings clause

of 28 U.S.C. § 2255(e), arguing that Rehaif v. United States constitutes a change in statutory

interpretation which warrants overturning his original conviction.

APPLICABLE LEGAL STANDARDS

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

used to raise claims of legal error in conviction or sentencing but rather are limited to

challenges regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693,

694 (7th Cir. 1998). Thus, aside from the direct appeal process, 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. A

Section 2255 motion is ordinarily the “exclusive means for a federal prisoner to attack his

conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). A prisoner is also normally

limited to only one challenge of his conviction and sentence under Section 2255. He or she

may not file a “second or successive” Section 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

rule of 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, it is possible for a prisoner to challenge his

federal conviction or sentence under Section 2241. Specifically, 28 U.S.C. § 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.” 28 U.S.C. § 2255(e). See Hill v. Werlinger, 695 F.3d 644, 648 (7th

Cir. 2012) (“‘Inadequate or ineffective’ means that ‘a legal theory that could not have been

presented under § 2255 establishes the petitioner’s actual innocence.’”) (citing Taylor v.

Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); see also United States v. Prevatte, 300 F.3d 792, 798–

99 (7th Cir. 2002). The Seventh Circuit construed the savings clause in In re Davenport, 147

F.3d 605, 611 (7th Cir. 1998): “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 a defect in his conviction as having been

imprisoned for a nonexistent offense.” In other words, “there must be some kind of

structural problem with section 2255 before section 2241 becomes available.” Webster v.

Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).

Following Davenport, a petitioner must meet three conditions in order to trigger

the savings clause. First, he must show that he relies on a new statutory interpretation

case rather than a constitutional case. Second, he must show that he relies on a decision

that he could not have invoked in his first Section 2255 motion and that case must apply

retroactively. Lastly, 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 Chazen v. Marske, 938 F.3d 851,

856 (7th Cir. 2019); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012).

THE REHAIF DECISION

On June 21, 2019, the Supreme Court held in Rehaif:

[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government

must prove both that the defendant knew he possessed a firearm and that

he knew he belonged to the relevant category of persons barred from

possessing a firearm. We express no view, however, about what precisely

the Government must prove to establish a defendant’s knowledge of status

in respect to other § 922(g) provisions not at issue here.

Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (defendant’s conviction for illegal

possession of firearm and ammunition was based on his status of being illegally or

unlawfully in the United States; reversing/remanding because the Government had not

been required to prove at trial that defendant knew he was unlawfully in the country).

The opinion abrogated nationwide precedent in all eleven circuit courts of appeal which

had held that knowledge was not an element that the prosecution must prove to obtain a

conviction.

ANALYSIS

Respondent in this case concedes that Taylor’s claim meets the at least the first two

Davenport requirements (Doc. 14 at 11), but argues he cannot meet the third factor because

of ample available evidence that Taylor knew he had been previously convicted of several

felonies at the time he possessed the firearm in question.

Taylor was convicted of state court felony offenses in March 1999, October 1999,

and July 2006. These convictions are established by state court records, and Taylor

acknowledged these convictions in his plea agreement, further failing to contest them in

his pre-sentencing report (Docs. 14-1, 14-7, 14-8, 14-9, 14-10). Indeed, even in his current

filing, Taylor does not appear to contest the fact that he does have three prior felony

convictions (Doc. 1 at 7). Rather, Taylor merely argues that the Government did not

specifically allege that he was a felon.

This approach, hinging on a mere technicality, does not rise to the level necessary

to show a miscarriage of justice under Davenport. Given the clear evidence supporting the

conclusion that Taylor had several prior felony convictions, no reasonable jury or grand

jury could have come to the conclusion that Taylor was not a felon for the purposes of

18 U.S.C. § 922(g)(1). Accordingly, the Court must dismiss his petition.

CONCLUSION

Duwayne Taylor’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241

(Doc. 1) is DISMISSED. The Clerk of Court is DIRECTED to enter judgment

accordingly.

If Taylor wishes to appeal the dismissal of this action, his notice of appeal must be

filed with this Court within 60 days of the entry of judgment. FED. R. App. P. 4(a)(1)(B). A

motion for leave to appeal in forma pauperis (“IFP”) must set forth the issues Taylor plans

to present on appeal. See FED. R. App. P. 24(a)(1)(C). If Taylor 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 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

proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll

the 60-day appeal deadline. FED. R. App. P. 4(a)(4). A Rule 59(e) motion must be filed no

more than twenty-eight (28) days after the entry of the judgment, and this 28-day

deadline cannot be extended. Other motions, including a Rule 60 motion for relief from

a final judgment, do not toll the deadline for an appeal.

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

disposition of his Section 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).

IT IS SO ORDERED.

DATED: December 30, 2020 Tl | oentteng

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NANCY J. ROSENSTENGEL

Chief U.S. District Judge