Chapman v. Keyes
| Docket Number | 23-cv-412-wmc [1] ,23-cv-431-wmc |
| Decision Date | 31 August 2023 |
| Parties | VERNON CHAPMAN, Plaintiff, v. R.D. KEYES, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Vernon Chapman is a federal prisoner currently incarcerated at FCI-Oxford, and he filed these two petitions under 28 U.S.C § 2241. In Case No. 21-cv-412, Chapman argues that he is entitled to resentencing because he received an improper sentence enhancement, and in Case No. 23-cv-431, Chapman contends that the Bureau of Prisons has been conducting his risk assessment improperly and preventing him from participating in necessary programming. Both petitions are before the court for preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases, which can be applied to petitions brought under § 2241. See Rule 1(b), Rules Governing Section 2254 Cases.
Chapman's request for resentencing in the '412 petition is barred by the Supreme Court's recent decision in Jones v Hendrix, 143 S.Ct. 1857 (2023), so I will dismiss that petition without prejudice. I will dismiss Chapman's request that the BOP adjust his criminal history points in the '431 case because he has not shown that the BOP's decisions about his risk assessments or programming are improper.
Chapman was charged in the Northern District of Illinois with knowingly and intentionally distributing 28 grams or more of mixtures and substances containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). See United States v. Chapman, No. 10-cr-961, Dkt. 72 (N.D. Ill.). As the parties were preparing for that trial, Chapman was added as a defendant in another ongoing criminal matter and was charged with heroin distribution and using a telephone to facilitate the drug transaction. United States v. Moneyham, No. 11-cr-299, Dkt. 28.
After numerous delays, Chapman proceeded to trial in May of 2014 on the charges against him in both cases, and a jury found him guilty of all charges. The court sentenced him to a total of 200 months of incarceration, to be followed by eight years of supervised release. That sentence included an enhancement under 21 U.S.C. § 851 because Chapman had previously been convicted of a felony drug offense. See Chapman, No. 19-cr-961, Dkt. 78. Chapman's conviction was affirmed on appeal, and Chapman sought postconviction relief under 28 U.S.C. § 2255, which was denied in 2018.
Here, Chapman seeks resentencing on the ground that the conviction that qualified him for the § 851 enhancement did not meet the definition of “serious drug felony” as that term is used in 21 U.S.C. § 841(b). Chapman appears to be raising a claim for relief under the United States Supreme Court's decision in Mathis v. United States, 579 U.S. 500 (2016), and the Seventh Circuit's decision in United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) ().
To collaterally attack a conviction or sentence, a federal prisoner must file a motion to vacate under 28 U.S.C. § 2255. Under § 2255(h), a federal prisoner may not bring a second or successive motion challenging his sentence unless the court of appeals certifies that: (1) there is newly discovered evidence sufficient to establish the petitioner's innocence; or (2) there is a new, retroactive rule of constitutional law that undermines the petitioner's conviction. See Mangine v. Withers, 39 4th 443, 447 (7th Cir. 2022). A federal prisoner cannot file a successive § 2255 motion on the ground that there is a new retroactive rule of statutory law.
In In re Davenport, the Court of Appeals for the Seventh Circuit interpreted § 2255(e), the so-called “savings clause” to allow prisoners to file claims based on new statutory interpretation rules under § 2241, even if they had already sought relief under § 2255. 147 F.3d 605, 610 (7th Cir. 1998). The court reasoned that for a prisoner in that situation, § 2255 was inadequate to resolve the prisoner's statutory claim: the rule was not available to the prisoner at the time he filed his first motion, and he couldn't raise the issue in a new motion. Id.
That is no longer the law after the Supreme Court's recent decision in Jones v. Hendrix, 143 S.Ct. 1857. In that case, the Court expressly overruled Davenport (and cases from other courts of appeals that reached the same conclusion) and decided that the savings clause does not permit a federal prisoner to file a petition based on a new rule of statutory law under § 2241 if he has already filed a motion under § 2255. Id. at 1868 (citing Davenport and concluding that “the saving clause does not authorize such an end-run around [section 2255(h).]”).
Jones is binding on this court and forecloses Chapman's petition. See Agostini v. Felton, 521 U.S. 203, 237-38 (1997). Because Chapman has already filed a § 2255 motion, and Chapman has not received certification from the court of appeals that his claim contains new evidence or a new rule of constitutional law, this court does not have jurisdiction to hear Chapman's claim. I will dismiss this petition for that reason. See Adams v. United States, 911 F.3d 397, 403 (7th Cir. 2018); Jones, 143 S.Ct. at 1864-65 (affirming dismissal of § 2241 petition on jurisdictional grounds).
In this petition, Chapman challenges the BOP's risk assessment score. He contends that in calculating his history of violence for purposes of the First Step Act, the BOP improperly incorporated events that occurred before the First Step Act was enacted and assigned him violence points even though he has not been convicted of violence. Chapman also argues that the BOP has failed to provide a meaningful opportunity for him to reduce his classification because he has been unable to participate in certain programs. Chapman asks the court to order the BOP to drop the violence points from his risk assessment and grant whatever other relief the court deems fair.
Chapman is not entitled to relief for two reasons. First, Chapman has not properly raised his concerns with the BOP. Chapman says that he has not completed the exhaustion procedures because this is a statutory interpretation question only a court can address. Dkt. 1, at 7. But courts usually require a prisoner to exhaust the BOP's administrative remedies before bringing a § 2241 action. See Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004); Anderson v. Miller, 772 F.2d 375, 376-77 (7th Cir. 1985). I may excuse a failure to exhaust where: (1) requiring exhaustion would cause prejudice because of the time required; (2) the agency cannot resolve the issue or grant the requested relief; (3) exhaustion would be futile because the agency is biased or has already determined the issue; or (4) substantial constitutional questions are raised. Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004). Given that the BOP is charged with interpreting the First Step Act's provisions, Chapman's belief that he is raising a statutory question is not an excuse to file this petition before exhausting his administrative remedies.
Second Chapman's request for a change in his risk assessment and for access to programming cannot be raised in a habeas petition, which is limited to challenges to the validity or duration of a prisoner's confinement. Pischke v. Litscher, 178 F.3d 497, 499-500 (7th Cir. 1999) (). Chapman may be raising these arguments in the hope that credits under the First Step Act might earn him time in pre-release custody or supervised release. See 18 U.S.C. § 3632(d)(4)(...
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