Opinion

Reyes v. Werlich

Court
District Court, S.D. Illinois
Filed
Dec 15, 2020
Cited by
0 cases
Authority
More cited than 21.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JESUS REYES,

Petitioner,

v. Case No. 3:19-CV-1378-NJR

WARDEN OF OKLAHOMA CITY FTC,

Respondent.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is the Motion to Dismiss Petition for Relief pursuant to

28 U.S.C. § 2241 filed by Respondent United States of America on behalf of the Warden

of Oklahoma City FTC (Doc. 22). Petitioner Jesus Reyes filed this action to extinguish his

conviction for possession of a firearm by a prohibited person based upon the Supreme

Court’s decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). Petitioner argues the

Government failed to prove that he knew of his felon status when he possessed a firearm

(Doc. 1).

The Court appointed the Federal Public Defender’s Office to evaluate Petitioner’s

claim (Doc. 13), but counsel later moved to withdraw after concluding Petitioner cannot

show he is actually innocent of the offense of possession of a firearm by a felon (Doc. 15).

In fact, Petitioner had entered into a stipulation of facts at trial admitting that he had been

convicted of a felony and was prohibited from possessing a firearm (Doc. 15, pp. 2-3,

Doc. 15-1). The Court granted counsel’s motion withdraw and gave Petitioner additional

time to voluntarily dismiss his case in light of counsel’s assessment of his claim (Doc. 18).

Alternatively, if Petitioner did not voluntarily dismiss his claim, Respondent was

directed to answer or otherwise respond to the Petition on or before October 30, 2020 (Id.).

Petitioner did not move to voluntarily dismiss his claim, so on October 26, 2020,

Respondent filed the instant motion to dismiss. Petitioner was granted 45 days—until

December 10, 2020—to respond to the motion and was advised that a failure to respond

may be deemed an admission of the merits of the motion pursuant to SDIL-LR 7.1(c)

(Doc. 23). Petitioner did not file a response by the deadline.

Petitioner admits that he has submitted a previous § 2255 motion, which prevents

him from seeking post-conviction relief without first seeking authorization from the

United States Court of Appeals for the Tenth Circuit. Nevertheless, as Respondent

acknowledges, § 2255 contains a “savings clause” that allows federal prisoners to proceed

under § 2241 when a motion under § 2255 would prove “inadequate or ineffective” to test

the legality of the detention. 28 U.S.C. § 2255(e). 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 a prior § 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).

Respondent asserts that Petitioner has not satisfied the second requirement of the

savings clause because Rehaif is not a decision that federal courts have deemed to be

retroactive. See Charles v. United States, No. 16-CV-9160, 2020 WL 4464715, at *2 (N.D. Ill.

Aug. 4, 2020) (“To date, the Supreme Court has not made Rehaif retroactive on collateral

review.”). Furthermore, Petitioner has failed to satisfy the third element of the savings

clause because he has not shown there is a fundamental defect that qualifies as a

miscarriage of justice with respect to his convictions under § 922(g). Respondent notes

that a “miscarriage of justice” has been qualified as a situation where a defendant is

convicted for a crime of which he is actually innocent. See, e.g., Montana v. Cross, 829 F.3d

775, 783 (7th Cir. 2016); see also Hill v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012). Here,

however, Petitioner’s prior conviction for aggravated assault sent him to prison for

29 months. Thus, any claim that Petitioner was unaware of his status as a felon would

have been rejected by the jury. And, of course, Petitioner stipulated to such at trial when

he stated he had been “convicted of a crime punishable for a term exceeding one year

(a felony) and was prohibited from possessing a firearm.” (Doc. 15-1).

Pursuant to Local Rule 7.1(c), the failure to respond timely to a motion may, in the

Court’s discretion, be deemed an admission of the merits of the motion. Despite being

directed to do so, Petitioner failed to file a timely response to the pending motion to

dismiss. The Court finds that the motion by the United States has merit, and, as a result,

it is appropriate to exercise discretion under Local Rule 7.1(c) to deem Petitioner’s failure

to respond an admission of the merits of the motion to dismiss.

For these reasons, the Court GRANTS the motion to dismiss filed by the United

States (Doc. 22). The petition filed pursuant to 28 U.S.C. § 2241 by Petitioner Jesus Reyes

is DISMISSED with prejudice.

The Clerk of Court is DIRECTED to enter judgment and close this case.

IT IS SO ORDERED.

DATED: December 15, 2020 Fl □

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

Page 4 of 4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.