United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
Terrance Roberts is a federal prisoner who has filed a
petition for a writ of habeas corpus under 28 U.S.C. §
2241 to challenge convictions from the year 2000 for money
laundering and conspiracy to commit money laundering in
connection with a prostitution ring, in violation of 18
U.S.C. § 1956. Petitioner contends that his convictions
are invalid under United States v. Santos, 553 U.S.
507 (2008), because both his indictment and the instructions
the jury received are inconsistent with the Supreme
Court's interpretation in that case of § 1956, a
statute that prohibits certain financial activities involving
the “proceeds” of an unlawful activity. In
particular, petitioner says that the Court defined
“proceeds” to mean “profits, ” but he
was charged and convicted under a theory that
“proceeds” means “receipts.” In other
words, he was charged and convicted under a theory that
“proceeds” means gross income rather than net
court screened the petition and directed the government to
respond, dkt. #4, and then asked for supplemental briefing in
an April 25, 2017 order to develop several issues, dkt. #14.
In its supplemental response, the government seems to abandon
all but one argument. In particular, the government says that
petitioner was convicted of both “promotional”
and “concealment” money laundering, that
petitioner received concurrent sentences for those
convictions and that Santos does not undermine the
conviction for money laundering under a concealment theory,
so even if the conviction for promotional money laundering is
invalid, it would not affect petitioner's sentence.
Although the government's objection has potential merit,
the government has failed to develop its argument that
Santos does not affect convictions for concealment
money laundering. Accordingly, I am giving the government one
last opportunity to show cause why the petition should not be
2009 Amendments and Venue
April 25, 2017 order, I asked the parties to address two new
issues. First, I noted that Congress had amended the
definition of “proceeds” in a 2009 amendment to
the money laundering statute, 18 U.S.C. § 1956(c)(9),
and I asked the parties to discuss whether the amendment has
any bearing on the petition. Second, I noted that, after
petitioner filed this case, he was transferred from the
Federal Correctional Institution in Oxford, Wisconsin to the
Federal Correctional Institution in Sandstone, Minnesota, and
I asked the parties to discuss whether petitioner's
transfer to a prison in Minnesota has any bearing on venue.
supplemental response, the government acknowledges that the
2009 amendment to § 1956(c)(9) is not retroactive and
therefore has no bearing on petitioner's claim. Dkt.#18
at 11. Second, the government does not seek a change in venue
as a result of petitioner's prison transfer. Id.
Accordingly, it is unnecessary to discuss those issues.
Procedural Requirements for Bringing a Petition under
prisoner may not bring a habeas petition under § 2241
unless “the remedy by motion [under § 2255] is
inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). To satisfy §
2255(e), a prisoner must show the following: (1) he is
seeking correction of a fundamental defect in his conviction
or sentence (such as a claim of actual innocence); (2) his
petition is based on a rule of statutory law not yet
established at the time he filed his first § 2255
motion; (3) the new rule applies retroactively; (4) he is
barred from bringing a successive § 2255 motion; and (5)
he either raised the issue on direct appeal or in a §
2255 motion or the issue was foreclosed by controlling
precedent at the time. Light v. Caraway, 761 F.3d
809, 812-13 (7th Cir. 2014); Hill v. Werlinger, 695
F.3d 644, 648 (7th Cir. 2012); Morales v. Bezy, 499
F.3d 668, 672 (7th Cir. 2007); United States v.
Prevatte, 300 F.3d 792, 799-800 (7th Cir. 2002); In
re Davenport, 147 F.3d 605, 610-11 (7th Cir. 1998).
See also Webster v. Caraway, 761 F.3d 764, 767 (7th
Cir. 2014) (“When a change of law, retroactively
applicable, shows that the prisoner did not commit a crime or
has received an illegally high sentence, § 2241 is
available if it otherwise would be impossible to implement
the Supreme Court's intervening decision.”).
initial response to the court's order to show cause, the
government did not challenge petitioner's ability to show
that he was challenging a fundamental defect in his
conviction, that his claim relied on a new rule of statutory
law or that he was unable to bring a motion under §
2255. I agree with the government's implicit concession
that petitioner has satisfied those requirements. Petitioner
is contending that he is actually innocent of money
laundering, so that qualifies as a fundamental defect,
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016);
Santos is a new rule of statutory interpretation;
and petitioner cannot file a motion under § 2255 because
he already filed such a motion and he does not meet the
criteria for filing a successive petition. 28 U.S.C. §
2255(h)(2) (successive petition allowed only for newly
discovered evidence or new rule of constitutional law).
government stated in its initial response that petitioner
could have raised his claim in a timely § 2255 motion,
but the government did not develop the argument and it
ignored United States v. Simmons, 154 F.3d 765, 770
(8th Cir. 1998), the case on which petitioner relied for the
proposition that his claim was foreclosed by circuit
precedent until the Supreme Court decided Santos.
(There is no dispute that Eighth Circuit precedent is
relevant for the purpose of determining whether
petitioner's claim was foreclosed because petitioner was
convicted in that circuit.) The government also seemed to
question in a footnote whether Santos should apply
retroactively, but, again, it did not develop the argument.
Accordingly, I asked the government to address the questions
whether: (1) Simmons prevented petitioner from
filing a timely petition under 28 U.S.C. § 2255; and (2)
whether Santos applies retroactively.
supplemental response, the government all but concedes that
both issues should be resolved in petitioner's favor.
Although the government does not say expressly that
Santos is retroactive, it “concedes that
Santos is a substantive statutory interpretation
case and that it is within this Court's authority”
to conclude that Santos applies retroactively.
Id. at 1. As I noted in the April 25 order, the
courts of appeal in at least four circuits have concluded
that Santos applies retroactively. Wooten v.
Cauley, 677 F.3d 303, 308-09 (6th Cir. 2012)
(“Because the new definition of a key phrase in the
money laundering statute is a substantive change of law and
increases the government's burden of proof, we agree with
the Fourth, Fifth, and Eleventh Circuits in holding that
Santos is retroactive.”). I am not aware of any courts
that have reached a different conclusion. In the absence of
any argument from the government, I will follow
the question whether petitioner could have raised his claim
in a timely § 2255 motion, the government devotes
several pages of its 12-page supplemental response to arguing
that Simmons did not foreclose petitioner's
claim. Dkt. #18 at 4-7. In particular, the government says
that Simmons was not dispositive because it involved
an interpretation of the word “proceeds” in the
context of the RICO statute, not the money laundering
not decide whether Simmons foreclosed
petitioner's claim because the government cites another
case that did. In particular, the government cites United
Statesv. Huber, 404 F.3d 1047, 1058 (8th Cir.
2005), in which the court rejected a defendant's argument
that the meaning of “proceeds” in the money
laundering statute excludes expenses.The government
acknowledges that Huber was decided before
petitioner's § 2255 ...