Tucker v. Werlick ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS RORY TUCKER, ) ) Petitioner, ) ) vs. ) Case No. 19-cv-1001-SMY ) ERIC WILLIAMS (WARDEN), ) ) Respondent. ) MEMORANDUM AND ORDER YANDLE, District Judge: Petitioner Rory Tucker filed the instant habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of his confinement. Specifically, Tucker argues that following United States v. Davis, 139 S. Ct. 2319 (2019), his conviction and sentence should be vacated. Respondent moves to dismiss the Petition on the basis that Davis is a constitutional case, and as such, Tucker cannot meet the criteria to bring his claim under § 2241. (Doc. 19). For the following reasons, Respondent’s motion is GRANTED. Background Tucker was convicted by a jury of conspiracy to commit armed bank robbery, to commit robbery and to carry and use a firearm during and in relation to and to possess a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 371 (Count 1), armed bank robbery in violation of 18 U.S.C. § 2113(a) (Count 8), and carrying and using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (Count 9). See United States v. Williams, Case No. 06- cr-20032-JES-DGB-5 (C.D. Ill.). He was sentenced to 60 months imprisonment on Count 1, 137 months on Count 8, and 84 months on Count 9, to be served consecutively for a total of 221 months. Id. at Doc. 181. In April 2004, Tucker filed an unsuccessful habeas petition under 28 U.S.C. § 2255 alleging ineffective assistance of counsel (Doc. 384). U.S. v. Tucker, Case No. 2:10-cv-02129-MPM-DGB (C.D. Ill.). Discussion Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not raise claims of legal error in conviction or sentencing; they may only challenge the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998). Therefore, 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, 217 (7th Cir. 2003). Under very limited circumstances, a prisoner may challenge his federal conviction or sentence under § 2241. Section 2255(e) contains a “savings clause” 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, 798-99 (7th Cir. 2002). 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, 1136 (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 a defect in his conviction as having been imprisoned for a nonexistent offense.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Following Davenport, the Seventh Circuit has enunciated 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 on 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.” Worman vy. Entzel, 953 F.3d 1004, 1008 (7th Cir. 2020) (emphasis in original) (citing Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016); Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)). Here, Tucker’s Petition fails to satisfy the first Davenport condition. He relies on Davis, which held that the residual clause in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. Because Davis is a case of constitutional interpretation, a claim based on that decision could be raised in a successive § 2255 motion if permission is timely sought and obtained. Tucker’s claim, however, cannot be pursued in a § 2241 petition under the “savings clause.” Accordingly, Respondent’s Motion to Dismiss the Petition for Relief Pursuant to 28 U.S.C. § 2241 (Doc. 19) is GRANTED. Tucker’s Petition for habeas relief under 28 U.S.C. § 2241 (Doc. 1) is DENIED and this case is DISMISSED without prejudice to Petitioner pursuing his claim pursuant to 28 U.S.C. § 2255 in the proper court. The Clerk is DIRECTED to enter judgment accordingly and to close the case. IT IS SO ORDERED. DATED: September 23, 2021 STACI M. YANDLE United States District Judge Page 3 of 3