The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MELVIN O. RUSHING, JR., )
)
Petitioner, )
)
vs. ) Case No. 21-cv-446-DWD
)
WARDEN SPROUL, )
)
Respondent. )
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
DUGAN, District Judge:
In Case No. 12-cr-090-AWA-TEM in the Eastern District of Virginia, Petitioner
Melvin O. Rushing, Jr. was convicted following a jury trial of (1) conspiracy to obstruct,
delay, and affect commerce by robbery in violation of 18 U.S.C. § 1951(a) (conspiracy to
commit a “Hobbs Act” robbery), (2) obstructing, delaying, and affecting commerce by
robbery in violation of 18 U.S.C. § 1951(a) and 2 (Hobbs Act robbery), and (3) possession
of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) and 2.
Rushing, now a federal inmate incarcerated at USP-Marion within the Southern District
of Illinois, brings a pro se petition pursuant to 28 U.S.C. § 2241 challenging his conviction
because he asserts that there is no federal jurisdiction over a robbery of a local business
by local suspects.
This case is before the Court for preliminary review of Rushing’s petition pursuant
to Rule 4 of the FEDERAL RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES
DISTRICT COURTS, which can be applied to § 2241 petitions pursuant to Rule 1(b). Rule 4
directs the judge who receives a petition to promptly examine it, and, “[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.”
Following a February 2013 jury trial, Rushing was convicted of attempting to rob
a McDonald’s restaurant in Hampton, Virginia. His petition explains that on May 6, 2009,
two individuals, one of whom a jury concluded was Petitioner, entered the McDonald’s
restaurant and hid in the restroom. They emerged from the restroom with a gun drawn
and demanded money, but the manager had fled the scene. As a result of the manager’s
absence, they were unable to obtain any currency from the robbery attempt, and the men
forced the remaining employees into a freezer before fleeing.
Before his trial, Rushing moved to dismiss the indictment against him for lack of
jurisdiction, arguing that the alleged crimes did not have a sufficient impact on interstate
commerce. The trial court denied his motion. Rushing did not appeal any aspect of his
conviction or sentence, but he did file a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 with the sentencing court. His § 2255 motion sought relief
pursuant to Johnson v. United States, 576 U.S. 591 (2015), arguing that a Hobbs Act robbery
is not a crime of violence for purposes of the Armed Career Criminal Act, 18 U.S.C. §
924(c). On July 31, 2019, in United States v. Mathis, 932 F.3d 242 (4th Cir. 2019), the Fourth
Circuit held that a Hobbs Act robbery is a crime of violence, and Rushing’s motion was
denied. He did not appeal the denial, nor has he sought to file a second or successive §
2255 motion raising any other issues.
Upon review of Rushing’s petition, the Court concludes that it plainly appears that
Rushing is not entitled to relief even without full briefing on his claims. By focusing on
the attempted robbery of a “local restaurant” by “local suspects” with no currency taken,
Rushing’s petition alleges that there was no jurisdiction over his conviction because the
impact on interstate commerce was de minimis. Hobbs Act robbery has two elements: “a
robbery and an effect on interstate commerce.” United States v. Carr, 652 F.3d 811, 812 (7th
Cir. 2011). Under the Hobbs Act:
The term “commerce” means commerce within the District of Columbia, or
any Territory or Possession of the United States; all commerce between any
point in a State, Territory, Possession, or the District of Columbia and any
point outside thereof; all commerce between points within the same State
through any place outside such States; and all other commerce over which
the United States has jurisdiction.
18 U.S.C § 1951(b)(3). The Supreme Court has described this definition as “unmistakably
broad. It reaches any obstruction, delay, or other effect on commerce, even if small.”
Taylor v. United States, 136 S.Ct. 2074, 2079 (2016).
Contrary to the suggestion in Rushing’s petition, the Government need “show
only that the charged crime had a ‘de minimis’ or slight effect on interstate commerce,”
and targeting a business engaged in interstate commerce is a sufficient interstate nexus
for federal jurisdiction. United States v. Carr, 652 F.3d 811, 813-14 (7th Cir. 2011). As the
Seventh Circuit noted:
An act of violence against even one business … could conceivably deter
economic activity and thus harm national commerce. The economic harm
would not necessarily depend upon the amount of money with which any
particular defendant absconds. If retail stores, in the aggregate, have a
substantial effect on commerce (which they undoubtedly do), then the
federal government has a legitimate interest in preventing any crime like
the one in this case.
Id. at 814 (internal citation omitted). To the extent that Rushing suggests that the de
minimis standard should be invalidated, this Court applies the law of the Seventh Circuit
and is bound by its precedent. To the extent that Rushing argues that a McDonald’s is a
“local restaurant” not engaged in interstate commerce, such an argument defies logic and
plainly lacks merit.
The Court also notes that Rushing fails to address whether his claims can be
brought pursuant to § 2241. Generally, § 2241 petitions may not be used to raise claims of
legal error in a conviction or at sentencing and are limited to challenges regarding the
execution of a sentence. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). A prisoner
who has been convicted in federal court typically must bring challenges to his conviction
and sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the sentencing court.
A prisoner is limited to bringing only one motion under § 2255, however, unless a panel
of the appropriate court of appeals authorizes the filing of a second or successive motion
after certifying that the motion will involve either newly discovered evidence “sufficient
to establish by clear and convincing evidence that no reasonable factfinder would have
found the movant guilty” or 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, a prisoner may employ § 2241 to challenge his
federal conviction or sentence. Section 2255(e) contains a “savings clause” that 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.” The Seventh Circuit has explained that
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 re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).
In the wake of Davenport, a petitioner must meet three conditions to trigger the
savings clause. First, he must show that he relies on a new statutory interpretation case
rather than on a constitutional case. Secondly, he must show that he relies on a decision
that he could not have invoked in his first § 2255 motion and that the decision applies
retroactively. Finally, he must demonstrate that there has been a “fundamental defect” in
his conviction or sentence that is so grave that it is deemed a miscarriage of justice. See
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios, 696 F.3d 638, 640 (7th
Cir. 2012).
Here, even if Rushing claimed clearly that a § 2255 motion was an inadequate or
ineffective means to challenge his conviction, he does not point to a new case of statutory
interpretation supporting his claims, nor does he rely on any decision or raise any
argument that could not have been invoked in his first § 2255 motion. He notes that he
did not raise this issue, or any issue, on direct appeal because he was unaware of a
commerce-related claim at the time he filed his § 2255 motion. (See Doc. 1, p. 26). This is
belied by his challenge to jurisdiction for commerce-related issues prior to trial, but, even
accepting his statement as true, lack of knowledge of a potential § 2255 claim is
insufficient to establish that § 2255 was an inadequate or ineffective manner in which
Rushing could have challenged his conviction. Given the lack of a basis for invoking the
“savings clause” and the lack of merit in the petition overall, the Court must dismiss
Rushing’s petition.
CONCLUSION
For all these reasons, the petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 is DENIED. This action is DISMISSED with prejudice. The Clerk of Court shall
enter judgment reflecting the dismissal and shall close this case.
It is not necessary for Petitioner to obtain a certificate of appealability should he
choose to appeal this Order denying his § 2241 Petition. Walker v. O’Brien, 216 F.3d 626,
638 (7th Cir. 2000). Petitioner may appeal by filing a notice of appeal, which typically
must be filed within 30 days of the entry of judgment. See FED. R. App. P. 4.
SO ORDERED.
Dated: May 18, 2021 U L. “
DAVIDW.DUGAN
United States District Judge