Duke v. Thompson, Case No. 17-cv-1024

CourtUnited States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
Writing for the CourtJOE BILLY McDADE United States Senior District Judge
PartiesRALPH CHAVOUS DUKE, Petitioner, v. PAUL THOMPSON, Acting Warden of FCI PEKIN, Respondent.
Docket NumberCase No. 17-cv-1024
Decision Date19 September 2017

PAUL THOMPSON, Acting Warden of FCI PEKIN, Respondent.

Case No. 17-cv-1024


September 19, 2017


This matter is before the Court on the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) filed by Ralph Chavous Duke. The parties have submitted memoranda of law in support of and in opposition to the Petition. For the reasons stated below, the Court grants the Petition (Doc. 1).


Petitioner is currently incarcerated at the Federal Correctional Institution in Pekin, Illinois. In 1989, Petitioner was convicted by a Minnesota federal jury of 1) participating in a continuing criminal enterprise to possess and distribute cocaine in violation of 21 U.S.C. § 848 (1988) (count 1); 2) aiding and abetting the attempt to possess with intent to distribute twenty kilograms of cocaine on May 17, 1989, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988) and 18 U.S.C. § 2 (1988) (count 2); 3) other instances of aiding and abetting the possession with intent to distribute smaller quantities of cocaine on various dates in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (counts 4, 5, 6, 7, 8); 4) three counts of using or carrying a firearm during

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and in relation to a drug trafficking offense all in violation of 18 U.S.C. § 924(c)(1) (1988) (counts 28, 29, 30); and 5) conspiracy from 1984 to May 18, 1989, to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (count 32). United States v. Duke, 940 F.2d 1113, 1115 (8th Cir. 1991). Petitioner initially received separate but concurrent life sentences on counts 1, 2, and 32, but the Eighth Circuit remanded his case and ordered that either his conviction on count 1 or count 32 be vacated because the convictions for both continuing criminal enterprise and conspiracy violated the Double Jeopardy clause of the Fifth Amendment. His conviction and sentence were affirmed by the Eighth Circuit in all other respects. In addition to the sentences in relation to counts 1, 2 and 32, Petitioner was also sentenced to concurrent forty-year sentences on each of counts 4-8. 940 F.2d at 1115. Moreover, Petitioner was also sentenced to mandatory consecutive sentences of thirty years, five years, and five years for counts 28, 29, and 30, respectively, totaling forty consecutive years. Id. Just last year, a Minnesota district court granted a motion to reduce Petitioner's sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines and reduced Petitioner's sentence of life plus 40 years consecutive to 365 months plus 40 years consecutive. United States v. Duke, No. 4:89-cr-00094-DSD-1, Doc. 264 (D. Minn. July 27, 2016).

To recap: Petitioner is serving concurrent terms of imprisonment of 365 and forty months, with an additional forty consecutive months to begin running when his 365 month term of imprisonment ends. It is clear to see why Petitioner is eager to shed himself of the 924(c) convictions if he can. With the current rules mandating federal prisoners serve out at least eighty-five percent of their incarceration terms,

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Petitioner may only have had to serve out 310 months, which is roughly 26 years. Since he has been incarcerated since 1989, it is possible his 365 month term of imprisonment has already run out. Thus, if his 924(c) convictions are indeed infirm and vacated, Petitioner may be entitled to immediate release. Petitioner should be aware that the Court has not reviewed his actual Bureau of Prison records nor his presentence investigation report and thus the foregoing discussion was merely intended to give context as to the import of the instant petition from the Petitioner's perspective; not as any sort of guarantee that he is indeed entitled to immediate release if he is successful in this action.

Petitioner's procedural history is complex. In the period between his direct appeal and the instant § 2241 petition, Petitioner sought collateral relief multiple times. In 1993, Petitioner filed an unsuccessful motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 arguing that the Government used perjured testimony to secure his conviction. See United States v. Duke, 50 F.3d 571, 573 (8th Cir. 1995). Two years later, the United States Supreme Court held in Bailey v. United States, 516 U.S. 137 (1995), that the term "use" in 18 U.S.C. § 924(c) does not include mere possession but "require[d] evidence sufficient to show an active employment of the firearm by the defendant." Id. at 142-43, see also In re Davenport, 147 F.3d 605, 607 (7th Cir. 1998).

Petitioner then filed a second § 2255 motion with the district court, arguing that his § 924(c) convictions should be vacated because of Bailey. See Duke v. United States, No. 4:96-cv-00845-DSD (D. Minn.). The district court found that the gatekeeping mechanism of the Anti-Terrorism and Effective Death Penalty Act of

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1996 was applicable to his second § 2255 motion and dismissed it without prejudice to his ability to seek the necessary approval from the Eighth Circuit Court of Appeals before seeking such relief in the district court. (Doc. 7-1 at 90-93); see 28 U.S.C. § 2255(h) ("A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals...."). Thereafter, Petitioner unsuccessfully sought such approval from the Eighth Circuit several times: in 1997, 2001, 2008, and 2012.

Petitioner now brings a petition for habeas relief under 28 U.S.C. § 2241. In it he argues his three convictions under 18 U.S.C. § 924(c) in counts 28, 29, and 30 must be vacated based on the Supreme Court's decision in Bailey. The Government agrees with Petitioner as to counts 29 and 30 but not as to count 28. Count 28 of the operative Indictment provided:

On or about the 18th day of May, 1989, in the State and District of Minnesota, the defendant, RALPH CHAVOUS DUKE, a/k/a PLOOKIE, a/k/a PLUKEY, did knowingly and unlawfully use and carry a firearm, namely a .22 caliber pistol with silencer attached, during and in relation to the drug trafficking crimes set forth in Counts l and 32 of this indictment, felonies subject to prosecution in a court of the United States, all in violation of Title 18, United States Code, Section 924 (c) (1).

(Doc. 7-1 at 15). The relevant jury instructions provided as follows:

The firearms count charges that the defendants used and carried firearms. It is sufficient if the United States proves either that firearms were used or carried; both do not have to be proved.
To meet its burden of proving that a firearm was used during or in relation to a drug trafficking crime, the United States does not have to show that the defendant actually possessed either the firearms or the drugs. Proof of constructive possession may be sufficient.

Proof that a person has in his house, apartment, or office a quantity of narcotics for distribution and a firearm may be sufficient to show beyond

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a reasonable doubt that a firearm is being used during or in relation to a drug trafficking crime. Proof of the presence of a firearm for purposes of protecting the narcotics, or cash proceeds from sales of narcotics at a place where narcotics are distributed, may be sufficient to show beyond a reasonable doubt that the firearm is being used during or in relation to a drug trafficking crime.

You are the sole judges of the facts, and it is up to you to determine what evidence to accept and what weight to give it.

(Doc. 7-1 at 47-48). Finally, the Eighth Circuit wrote the following while affirming Petitioner's 924(c) convictions on direct appeal under a pre-Bailey understanding of the term "use":

A weapon need not be actually brandished or discharged to be used, however, so long as "it was an integral part of [the defendant's] criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed." United States v. Matra, 841 F.2d 837, 843 (8th Cir. 1988). In drug-trafficking crimes, firearms are often used for protection or intimidation; their "presence and availability in light of the evident need demonstrates the use." United States v. LaGuardia, 774 F.2d 317, 321 (8th Cir. 1985). Accord United States v. Michaels, 911 F.2d 131, 132 (8th Cir. 1990) ("[I]f a gun [was] available to the defendant, and if the gun was an integral part of the crime and increased the likelihood of its success, then it was used during and in relation to the crime."), cert. denied, 498 U.S. 1094, 111 S.Ct. 981, 112 L.Ed.2d 1066 (1991).


In the spring of 1988, [Petitioner] called his nephew, Joseph Ballard, and told him to pick up the pistol from Marcel Duke. Ballard delivered the gun to [Petitioner] at the Delano house, where [Petitioner] "loaded it, and showed it to his friend Marvin [McCaleb], and went out in the yard, and shot it a few times." Trial Transcript vol. 7, at 88. During the six to eight weeks when the gun was kept at the Delano house, [Petitioner] also fired it in the presence of his Columbian source. Id. vol. 7, at 206-07. At some point, [Petitioner] had Ballard take the gun to the storage unit where it was seized on May 18, 1989.


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We think that the two occasions when [Petitioner] fired the gun in the presence of others constitute actual use within section 924(c); the public act of firing a pistol with a silencer can only be an advertisement of its availability if needed-clearly the sort of intimidation contemplated by our cases. See, e.g., LaGuardia, 774 F.2d at 321. Cf. United States v. Evans, 888 F.2d 891, 896 (D.C.Cir.1989) (although actual use not needed under section 924(c), act of pointing gun at government informant and co-defendant on two different occasions "suggests that the guns were, in fact, used to protect the drug stash"), cert. denied, 494 U.S. 1019, 110 S.Ct. 1325, 108 L.Ed.2d 500 (1990).

940 F.2d at 1119. The...

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