Kramer v. Olson, No. 03-2187.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtPer Curiam
Citation347 F.3d 214
PartiesBenjamin Barry KRAMER, Petitioner-Appellant, v. Keith E. OLSON, Warden, United States Penitentiary, Terre Haute, Indiana, Respondent-Appellee.
Docket NumberNo. 03-2187.
Decision Date10 October 2003
347 F.3d 214
Benjamin Barry KRAMER, Petitioner-Appellant,
v.
Keith E. OLSON, Warden, United States Penitentiary, Terre Haute, Indiana, Respondent-Appellee.
No. 03-2187.
United States Court of Appeals, Seventh Circuit.
Submitted July 10, 2003.
Decided October 10, 2003.
Rehearing and Rehearing En Banc Denied December 22, 2003.

Page 215

G. Richard Strafer, (Argued), Quinon & Strafer, Miami, FL, for Petitioner-Appellant.

Gerald A. Coraz (Argued), Office of the United States Attorney, Indianapolis, IN, for Respondent-Appellee.

Before FLAUM, Chief Judge, and BAUER, and MANION, Circuit Judges.

PER CURIAM.


Federal prisoner Benjamin Kramer petitioned for a writ of habeas corpus under 28 U.S.C. § 2241, challenging his conviction under Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). The district court concluded that Kramer could not proceed under § 2241 because the principal means of attacking a federal conviction, a motion to vacate under

Page 216

28 U.S.C. § 2255, was not inadequate to test the legality of Kramer's conviction. The district court accordingly characterized Kramer's filing as a mislabeled § 2255 motion and dismissed for lack of jurisdiction because Kramer had once before sought relief under § 2255 and had not received our permission to do so again. We affirm.

Between 1982 and 1986 Kramer and others imported several hundred thousand pounds of Columbian marijuana into the United States. A federal jury in the Southern District of Illinois found Kramer guilty of engaging in a continuing criminal enterprise ("CCE"), see 21 U.S.C. § 848, and of conspiracy to distribute marijuana, see id. §§ 846, 841(a)(1). Kramer was sentenced to a mandatory term of life imprisonment without parole on the CCE count (reflecting the jury's finding that Kramer acted as a principal administrator of the CCE), and to a concurrent term of 40 years' imprisonment on the conspiracy count. We affirmed. United States v. Kramer, 955 F.2d 479 (7th Cir.), cert. denied, 506 U.S. 998 (1992).

Several years later Kramer moved to vacate his convictions under § 2255. As relevant here, he argued that the Supreme Court's decision in Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), rendered the convictions invalid. In Rutledge the Supreme Court held that conspiracy under § 846 is a lesser included offense of the CCE violation. See id. at 300, 116 S.Ct. 1241. In light of Rutledge, Kramer's convictions for both conspiracy and CCE could not stand. Predictably, the district court vacated the conspiracy count (handing Kramer a rather hollow victory that eliminated the 40-year sentence but left the life sentence intact), subject to reinstatement should the CCE conviction itself ever be vacated.

Kramer now seeks exactly that, relying this time on Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), which also analyzes the CCE statute. The statute defines a "continuing criminal enterprise" as a violation of the federal drug laws that is part of a "continuing series of violations." See 21 U.S.C. § 848(c). Richardson holds that each underlying violation in the "continuing series" is an element of the CCE offense. Richardson, 526 U.S. at 817-18, 824, 119 S.Ct. 1707. Consequently, a jury must agree unanimously as to which predicate "violations" make up the "continuing series of violations." Id. at 815, 824. Richardson overruled this court's precedent that allowed for conviction without unanimity about the specific CCE predicates. See, e.g., Kramer, 955 F.2d at 486-87. Thus, in accordance with our pre-Richardson decisions, Kramer's jury was not told that it needed to agree about which underlying drug transactions comprised the continuing series, but only that it must agree that Kramer committed three violations of the federal drug laws.

With Richardson in his quiver, Kramer filed in the Southern District of Illinois what he styled a petition for a writ of habeas corpus under § 2241 or, alternatively, a § 2255 motion. The district court dismissed the suit because a § 2241 petition must be filed in the district with jurisdiction over the petitioner's custodian, see Samirah v. O'Connell, 335 F.3d 545, 551 (7th Cir.2003), which in Kramer's case is the Southern District of Indiana. Alternatively, the court held that it lacked jurisdiction over a second § 2255 motion absent authorization from this court. See 28 U.S.C. § 2255 ¶ 8 (limiting prisoners to one collateral attack without appellate authorization); Carter v. United States, 312 F.3d 832, 833 (7th Cir.2002). So Kramer refiled his § 2241 petition in the Southern District of Indiana.

Page 217

The Indiana district court concluded that, despite the document's § 2241 label, it was really an unauthorized second § 2255 motion. The court noted that a prisoner may not use § 2241 to attack a conviction or sentence except in the narrow class of cases where § 2255 is "inadequate or ineffective" to test the legality of the prisoner's detention. 28 U.S.C. § 2255 ¶ 5. Concluding that...

To continue reading

Request your trial
344 practice notes
  • Mitchell v. Warden, FCI-Greenville, Case No. 19-cv-0539-RJD
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • November 8, 2019
    ...which sentenced him. A § 2255 motion is ordinarily the "exclusive means for a federal prisoner to attack his conviction." Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is generally limited to only one challenge of his conviction and sentence under § 2255. A prisoner ma......
  • Wadlington v. Werlich, Case No. 17-cv-449-SMY
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • April 7, 2020
    ...his conviction and sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the court which sentenced him. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). Additionally, he may not file a "second or successive" § 2255 motion unless a panel of the appropriate court of appeals cer......
  • Barker v. Colvin, 4:12-CV-29-APR
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 19, 2013
    ..." 'New' evidence is evidence 'not in existence or available to the claimant at the time of the administrative proceeding.'" Jens, 347 F.3d at 214 (citing Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993)) (quoting Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 110 L.Ed.2d ......
  • Morales v. Bezy, No. 06-1490.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 24, 2007
    ...unobstructed opportunity to present it. He did not, and therefore should be allowed to proceed with it at this time. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir.2003) (recognizing that a defendant "must first show that the legal theory he advances relies on a change in law that postdate......
  • Request a trial to view additional results
344 cases
  • Mitchell v. Warden, FCI-Greenville, Case No. 19-cv-0539-RJD
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • November 8, 2019
    ...which sentenced him. A § 2255 motion is ordinarily the "exclusive means for a federal prisoner to attack his conviction." Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is generally limited to only one challenge of his conviction and sentence under § 2255. A prisoner ma......
  • Wadlington v. Werlich, Case No. 17-cv-449-SMY
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • April 7, 2020
    ...his conviction and sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the court which sentenced him. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). Additionally, he may not file a "second or successive" § 2255 motion unless a panel of the appropriate court of appeals cer......
  • Barker v. Colvin, 4:12-CV-29-APR
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 19, 2013
    ..." 'New' evidence is evidence 'not in existence or available to the claimant at the time of the administrative proceeding.'" Jens, 347 F.3d at 214 (citing Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993)) (quoting Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 110 L.Ed.2d ......
  • Morales v. Bezy, No. 06-1490.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 24, 2007
    ...unobstructed opportunity to present it. He did not, and therefore should be allowed to proceed with it at this time. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir.2003) (recognizing that a defendant "must first show that the legal theory he advances relies on a change in law that postdate......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT