United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY District Judge.
Eddie Baker, Jr., is currently in the custody of the United
States Bureau of Prisons at the Federal Correctional
Institution in Oxford, Wisconsin (“FCI Oxford”).
Before the court for preliminary review is Baker's
petition for a writ of habeas corpus.Also before the court is
Baker's motion to supplement (dkt. #3), which is granted.
After considering the pleadings, memoranda and supplement,
however, Baker's petition will be dismissed for the
reasons set forth briefly below.
is serving concurrent sentences for state and federal
convictions. Milwaukee County imposed a ten-year sentence for
his conviction of first-degree reckless endangerment of
safety while armed with a dangerous weapon, while the Eastern
District of Wisconsin imposed a concurrent 327-month sentence
for a conviction of unlawful possession of a firearm as a
felon. As reflected in the length of his federal sentence,
Baker was classified as an armed career criminal, and his
guidelines range was calculated under U.S.S.G. §
2K2.1(b), which specifies an enhanced base offense level of
24 if a defendant has two prior convictions for violent or
controlled substance offenses. In Baker's case, he
received this enhancement based on two convictions for drug
offenses and three Illinois convictions for armed robbery.
September 29, 2004, Baker filed a motion in the Eastern
District under 28 U.S.C. § 2255, asking the sentencing
court to vacate, set aside, or correct his sentence on the
following grounds: (1) the trial court lacked subject matter
jurisdiction to adjudicate his case under 18 U.S.C. §
921(a)(20); (2) the trial court erred by directing a partial
verdict against him; (3) the prosecutor engaged in
misconduct; (4) the charges violated the Double Jeopardy
Clause; (5) there was insufficient evidence to prove that the
firearm travelled in interstate commerce; (6) his sentence
violated the Ex Post Facto Clause; and (7) defense counsel
provided ineffective assistance.
concluding that several of these grounds had already been
adjudicated on direct appeal and that his remaining claims
were barred by the doctrine of procedural default, the
sentencing court denied relief on November 4, 2005. See
Baker v. United States, 04-cv-938 (E.D. Wis.). The
Seventh Circuit subsequently rejected Baker's request for
a certificate of appealability from the sentencing
court's denial, see Baker v. United States, No.
05-4435 (7th Cir. March 2, 2006), and the United States
Supreme Court denied his petition for a writ of certiorari
from that decision. See Baker v. United States, 548
U.S. 917 (2006).
the United States Supreme Court issued Johnson v. United
States, 135 S.Ct. 2551 (2015), holding that the residual
clause of the Armed Career Criminal Act (“ACCA”)
is unconstitutionally vague, Baker submitted an application
in the Seventh Circuit seeking authorization to file a
successive § 2255 motion to vacate pursuant to 28 U.S.C.
§ 2243(b)(3). However, the Seventh Circuit also denied
that request, explaining that:
Johnson is of no help to Baker. He has two
convictions for drug offenses - possession of a controlled
substance with intent to deliver - that qualify as serious
drug offenses under the Armed Career Criminal Act,
see 18 U.S.C. § 924(e)(2)(A)(ii), and
controlled substance offenses under the guidelines,
see U.S.C.G. § 4B1.2(b). In addition, Baker has
been convicted three times of armed robbery in Illinois. 720
ILCS 5/18-1, 18-2 (1961). The crime of robbery in Illinois
has as an element the use of force, United States v.
Dickerson, 901 F.2d 579, 584 (7th Cir. 1990), and thus
remains a violent felony after Johnson. Baker points
out that the robbery offenses all predated his federal
offense by more than 15 years, but there is no temporal
restriction in the ACCA. See United States v.
Johnson, 743 F.3d 1110, 1111 (7th Cir. 2014); United
States v. Wright, 48 F.3d 254, 256 (7th Cir. 1995).
Baker also points out that he was sentenced on the three
robberies on the same day. The robberies, however, like the
drug offenses, were separate crimes that took place on
different days. See United States v. Elliot, 703
F.3d 378, 386-87 (7th Cir. 2012); United States v.
Sims, 683 F.3d 815, 816-17 (7th Cir. 2012).
Baker v. United States, No. 16-2364, slip op. at 2
(7th Cir. June 29, 2016).
§ 2241 petition, Baker again claims that he is entitled
to relief after Johnson, although this time he
styles his challenge as one against the Seventh Circuit's
decision to deny Baker's request for authorization to
submit a successive petition under § 2255. Regardless,
Baker's petition is governed by the Antiterrorism and
Effective Death Penalty Act (the “AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214, which was enacted on April
24, 1996. Under the AEDPA, any “second or successive
application” for habeas relief must be authorized by
the court of appeals. See 28 U.S.C. §
2244(b)(3)(A). Generally, these filings are prohibited
“if they follow a filing that ‘counts' as the
prisoner's first (and only) opportunity for collateral
review.” Vitrano v. United States, 643 F.3d
229, 233 (7th Cir. 2011) (citation omitted). Since
Baker's 2004 petition counts as his first opportunity for
collateral review, his pending petition qualifies as a second
or successive application for habeas relief. See Altman
v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (petitions
that “have been denied based on a procedural default
… do count as prior petitions because the petitioner
is incapable of curing the defect underlying the district
a petition under § 2241 does not face the successive
petition bar, Baker's § 2241 petition is really a
§ 2255 claim in sheep's clothing. A defendant has
limited avenues of relief from a federal conviction once it
has become final. After a defendant has completed a direct
appeal, or his time to appeal has expired, a motion under 28
U.S.C. § 2255 is generally the “exclusive”
means for a federal prisoner to challenge the validity or
imposition of his sentence. Hill v. Werlinger, 695
F.3d 644, 647 (7th Cir. 2012). In a “narrow class of
cases, ” a federal prisoner may challenge his
conviction and sentence under § 2241, but only if he can
show that his claims fit within the “savings
clause” found at 28 U.S.C. § 2255(e). Id.
at 648; Kramer v. Olson, 347 F.3d 214, 217 (7th Cir.
2003); see also Carnine v. United States, 974 F.2d
924, 927 (7th Cir. 1992) (comparing the remedies available
under §§ 2241, 2255). The “savings
clause” authorizes a § 2241 petition where the
remedy under § 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C.
order to fit within the savings clause, the Seventh Circuit
has explained that a petitioner must generally meet three
conditions. Brown v. Caraway, 719 F.3d 583, 586 (7th
Cir. 2013). First, he must show that he relies on a new case
of statutory interpretation. Id. Second, he must
show that the case applies retroactively. Id. Third,
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. Id.;
see also Brown v. Rios, 696 F.3d 638, 640 (7th Cir.
2012). Recently, in Webster v. Daniels, 784 F.3d
1123 (7th Cir. 2015), the Seventh Circuit reemphasized that
“there must be some kind of structural problem with
§ 2255 before § 2241 becomes available. In other
words, something more than a lack of success with a §
2255 motion must exist before the savings clause is
satisfied.” Id. at 1136. The test remains
whether Section 2255 is an inadequate or ineffective remedy,
meaning whether it allows the petitioner “a reasonable
opportunity to obtain a reliable judicial determination of
the fundamental legality of his conviction and
sentence.” Id. (quoting In re
Davenport, 147 F.3d 605, 609 (7th Cir. 1998)).
challenge may meet the first two requirements -- the
Johnson decision interprets the ACCA in a new way
and applies retroactively. Yet it fails on the third. Indeed,
as set forth in the Seventh Circuit's decision quoted
above, Baker's sentence does not suffer from a
fundamental defect, since he received proper enhancement
under the ACCA in light of his two drug convictions and three
robbery convictions even post-Johnson. See also
United States v. Smith, 669 Fed.Appx. 314, 315 (7th Cir.
2016) (“we have held that convictions under [the
Illinois robbery statute] are crimes of violence under the
elements clauses of the Guidelines and similarly worded
statutes”); United States v. Frazier, 710
Fed.Appx. 251, 253 (7th Cir. 2018) (while the conclusion in
Dickerson that the Illinois robbery statute defines
a violent felony for ACCA purposes has been challenged, the
court has rejected at least one such challenge) (citing
Van Sach v. United States, No. 17-1824, 2017 WL
4842617, at *1 (7th Cir. Sept. 1, 2017) (nonprecedential
opinion). Moreover, Baker's supplemental authority -- the
Supreme Court's decision in United States v.
Beckles, 137 S.Ct. 886 (2017) -- only ...