Blumeyer v. Walton

• Court: U.S. District Court — Southern District of Illinois
• Writing for the Court: David R. Herndon
• Decision Date: 26 August 2013
• Citation: Blumeyer v. Walton (S.D. Ill. Aug 26, 2013)
• Parties: ARTHUR A. BLUMEYER, III, Petitioner, v. J.S. Walton, Respondent.

ARTHUR A. BLUMEYER, III, Petitioner, v. J.S. Walton,¹ Respondent.

Case No. 11-cv-1137-DRH-DGW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Signed: August 26, 2013

MEMORANDUM AND ORDER

HERNDON, Chief Judge:

I. Introduction

Before the Court is a Report and Recommendation (R&R) (Doc. 26) of United States Magistrate Donald G. Wilkerson, issued pursuant to 28 U.S.C. § 636(b)(1)(B), FEDERAL RULE OF CIVIL PROCEDURE 72(b), and SDIL-LR 72.1(a), recommending denial of petitioner Arthur A. Blumeyer, III's, 28 U.S.C. § 2241 petition for writ of habeas corpus (Doc. 1, amended petition at Docs. 10, 11) and dismissal of this action. The R&R was sent to the parties, with a notice informing them of their right to file "objections" to the recommendation. In accordance with the notice, Blumeyer filed timely objections to the R&R (Docs. 27), to which the respondent has commented (Doc. 28). Because Blumeyer filed timely objections,this Court must undertake de novo review of the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis, 199 F.3d at 904. In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which specific objection has been made. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no specific objection has been made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). For the reasons discussed herein, the Court ADOPTS the findings and conclusions of the R&R.

II. Background

Blumeyer does not object to the R&R's findings of fact, and finding no error, the Court adopts them as its own. Thus, the Court shall not detail the history of Blumeyer's direct appeal, see United States v. Blumeyer, 114 F.3d 758 (8th Cir. 1997), or his previous Section 2255 and multiple Section 2241 motions. The Court shall provide details of the underlying factual issues when necessary to its de novo review of the R&R's legal conclusions to which Blumeyer specifically objects.

In the most general of terms, Blumeyer's underlying criminal case arises from a complicated insurance fraud scheme. See Blumeyer, 114 F.3d at 761-63. In 1993, Blumeyer was indicted on 34 counts and convicted of 27 counts ofcriminal activity. See Blumeyer v. Hollingsworth, 08-cv-430-DRH-SCW (S.D. Ill. 2008) (Doc. 1, pp. 10-56) (Blumeyer's criminal judgment and indictment attached to his Section 2241 petition previously filed in this district, transferred to the Eastern District of North Carolina, and subsequently voluntarily dismissed without prejudice).

Along with his co-defendants, Blumeyer was indicted on sixteen counts of wire fraud under 18 U.S.C. §§ 1343, 1346, six counts of mail fraud under 18 U.S.C. §§ 1341, 1346, and one count of conspiracy to commit mail and wire fraud under 18 U.S.C. § 371 (Id. at pp. 17-35).

Blumeyer was additionally charged with violating three different money laundering statutes: Counts 26 through 28, 18 U.S.C. § 1956(a)(1)(A)(i) (promoting a specified unlawful activity); Counts 29 and 30, 18 U.S.C. § 1957 (engaging in monetary transactions in criminally derived property); and finally Counts 31 through 34, 18 U.S.C. § 1956(a)(1)(B)(i) (concealing or disguising the proceeds of specified unlawful activity) (Id. at pp. 41-55).

Following a jury trial, Blumeyer was convicted of fifteen counts of wire fraud: Counts 1-14, 16; six counts of mail fraud: Counts 17-22; the conspiracy count: Count 23; and five of the money laundering counts: Count 30, 18 U.S.C. § 1957, and Counts 31-34, 18 U.S.C. § 1956(a)(1)(B)(i) (Id. at p. 10). Blumeyer was ultimately sentenced to a total term of 262 months' imprisonment (Id. at p. 11).

Blumeyer's petition asserts that three Supreme Court cases, United States v. Santos, 553 U.S. 507 (2008), Skilling v. United States, 130 S. Ct. 2896(2010), and Black v. United States, 130 S. Ct. 2963 (2010), render him "actually innocent" of his "theft of honest services" and money laundering convictions. Thus, he is entitled to review under the "savings clause" of Section 2255.

The R&R concludes that Blumeyer has not demonstrated that Eighth Circuit precedent wholly foreclosed his instant arguments during his direct appeal or first Section 2255 motion and thus Section 2255 is not "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). Alternatively, the R&R notes that the cases on which Blumeyer relies would not provide him his requested relief even if his claims were properly before the Court.

III. Objections

1. Procedural Availability of Section 2241

Blumeyer first objects to the R&R's conclusion that Eighth Circuit case law did not foreclose his instant arguments on direct appeal or during his first Section 2255 motion. Blumeyer argues that Section 2255 is "inadequate or ineffective" because United States v. Scialabba, 282 F.3d 475 (7th Cir. 2002) (first case support in Seventh Circuit for a Santos-type argument), Santos, Skilling, and Black "were decided long after Blumeyer's conviction, sentencing, direct appeal, and first round of collateral attack."

As Blumeyer brings his claims under the "savings clause" of Section 2255, he must demonstrate Section 2255 is, "inadequate or ineffective to test the legality of his detention," for the Court to entertain his Section 2241 petition. Unthank v. Jett, 549 F.3d 534, 535 (7th Cir. 2008) (citing 28 U.S.C. § 2255(e)). "Inadequateor ineffective" means that "a legal theory that could not have been presented under § 2255 establishes the petitioner's actual innocence." Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); see also In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).

As the Seventh Circuit recently reiterated, Davenport explained the meaning of "inadequacy," stating, "[a] procedure for postconviction relief can fairly be 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." Hill v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (emphasis in original) (quoting Davenport, 147 F.3d at 611).

Thus, in Morales v. Bezy, 499 F.3d 668 (7th Cir. 2007), the court determined, "that the petitioner could not show that his § 2255 remedy was inadequate or ineffective because his claim was not foreclosed by binding precedent," as "'the fact that a position is novel does not allow a prisoner to bypass section 2255 . . . Only if the position is foreclosed (as distinct from not being supported by—from being, in other words, novel) by precedent' is a § 2255 remedy inadequate." Id. at 648 (citing Morales, 499 F.3d at 672); see also Davenport, 147 F.3d at 610 (petitioner had no reasonable opportunity on direct appeal or in his first 2255 petition to challenge the legality of his conviction where "[t]he law of the circuit was so firmly against him that we have held that in that period defendants in this circuit did not have to raise [the] issue in order topreserve it as a basis for collateral attack later on"). For the reasons states below, the Court agrees with the R&R in its conclusion that Blumeyer has not demonstrated his claims are properly before the Court under Section 2241.

2. Theft of Honest Services

Blumeyer argues that Skilling and Black require that his "theft of honest services" conviction and sentence be vacated because, "[t]he facts are, Blumeyer never provided bribes or kickbacks to Dewey Crump" (Crump), Missouri state representative and chairman of the House Insurance Committee at the time Blumeyer's fraudulent scheme was executed (Doc. 27, p. 3).

The mail and wire fraud statutes criminalize the conduct of those who devise or intend to devise "a scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . ." through use of the mail system, see 18 U.S.C. § 1341, or wire, radio, or television communication, see 18 U.S.C. § 1343. In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held that the mail and wire fraud statutes only applied to fraudulent schemes designed to deprive another of tangible property rights, not an intangible right to honest government. Thus, Congress responded by enacting 18 U.S.C. § 1346, defining "scheme or artifice to defraud" for purposes of mail and wire fraud as including "a scheme or artifice to deprive another of the intangible right of honest services."

In Skilling, the Supreme Court addressed Skilling's argument that Section 1346 was unconstitutionally vague. The Supreme Court determined that the coreof pre-McNally case law "involved fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived." Skilling, 130 S. Ct. at 2928. By constraining its application in this way, the Supreme Court avoided holding Section 1346 constitutionally vague. Id. Decided the same day as Skilling and in light of its holding, Black held that jury instructions allowing the defendants' convictions for "honest services" fraud for conduct not involving bribery or kickbacks were erroneous. Black, 130 S. Ct. at 2968.

On direct appeal, Blumeyer and co-defendants argued they could not be found guilty of defrauding citizens of their right to the honest services of Crump on the following grounds: 1. The enactment of Section 1346 did not overrule McNally and thus the mail fraud statute was limited to property rights; 2. The scheme alleged included activities undertaken before Section 1346's effective date and thus their convictions were invalid; and 3. The convictions could not stand even under Eighth Circuit pre-McNally case law. The Eighth Circuit rejected...