Benjamin B. Kramer v. United StatesBenjamin B. Kramer v. United States
Case Information
*1 Before P OSNER and K ANNE , Circuit Judges, and D ARRAH , District Judge .
K ANNE , Circuit Judge . The Honorable John W. Darrah, of the United States District Court for the Northern District of Illinois, sitting by designation.
I. B ACKGROUND
In 1988, Appellant Benjamin Barry Kramer was convicted
of two offenses: (1) conspiring to distribute marijuana, in vi-
olation of
The district court dismissed Kramer’s petition, conclud-
ing that it lacked subject matter jurisdiction over Kramer’s
claim. It characterized Kramer’s motion as successive and
thus barred by
A. Kramer’s Trial and Conviction
The government believed that between 1982 and 1986,
Kramer and several associates imported large quantities of
marijuana into the United States. On January 26, 1988, it in-
dicted Kramer and several codefendants on multiple counts.
Count 1 charged him with conducting a CCE, in violation of
The version of
[A] person is engaged in a continuing criminal en- terprise if—
(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and
(2) Such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—
(A) which are undertaken by such person in concert with five or more other persons with re- spect to whom such person occupies a position of organizer, a supervisory position, or any oth- er position of management, and (B) from which such person obtains substantial income or resources.
So, in addition to the other statutory requirements, to
convict Kramer of the CCE charge, the government had to
prove that Kramer committed the requisite underlying felo-
nies.
See
claimed that Kramer had committed a variety of eligible fel- onies: the indictment listed fourteen drug offenses allegedly committed by Kramer. [1]
The case went to jury trial in the Southern District of Illi- nois between June and October of 1988. The government presented evidence, including witness testimony, of the drug violations alleged in the indictment. Over Kramer’s objec- tion, one witness provided evidence of additional drug of- fenses that were not enumerated in the indictment.
Following the presentation of evidence, the district court instructed the jury to engage in a two-step process to deter- mine whether the government had proven its CCE charge. First, the court stated, the jury had to determine whether Kramer had committed any eligible offense. If the jury con- cluded that Kramer had committed one such violation, it should proceed to the second step.
In the second step, the jury had to determine whether the
offense that it found in step one was “part of a continuing
series of violations,” as required by subsection (c)(2).
See
U.S.C.
Kramer raised a number of objections to the district court’s jury instructions. As relevant here, Kramer requested that the court instruct the jury that it could consider only of- fenses alleged in the indictment. Additionally, he asked that the court instruct the jurors that they must unanimously agree on the same three acts as forming the predicates for the CCE charge. And finally, Kramer requested that the court use a special verdict form to record the verdict. The court denied all of these requests.
After five reported deadlocks, the jury convicted Kramer
on both counts. He was sentenced to a forty-year prison term
for the
B. Kramer’s Appeals, Habeas Petitions, and Relevant Case Law Kramer’s subsequent procedural history is intertwined with a series of cases decided by this court and the United States Supreme Court. We present both together, in an at- tempt to provide a clear and concise explanation of this case’s twenty-seven year history.
1. Kramer’s Direct Appeal
Kramer filed his direct appeal in May 1989. As relevant
here, that appeal alleged two errors requiring reversal. Kra-
mer argued that the district court erred in (1) refusing to re-
quire juror unanimity as to the three predicate violations re-
quired for the “continuing series” element of the CCE count;
and (2) allowing the jury to consider the
Before we ruled on Kramer’s appeal, we decided
United
States v. Baker
,
In January 1992, we affirmed Kramer’s convictions.
Unit-
ed States v. Kramer,
2. The Supreme Court’s Decision in
Rutledge
The Supreme Court decided
Rutledge v. United States
in
1996, four years after we affirmed Kramer’s conviction on
direct appeal. 517 U.S. 292 (1996). Defendant Tommy
Rutledge was convicted in the Central District of Illinois of
one count of violating
Applying the
Blockburger
test, the Court determined that
the conspiracy defined in
3. Kramer’s 1997
On March 5, 1998, the district court issued its memoran-
dum opinion and order.
See Kramer v. United States
, No. 97-
Civ-4117-JLF (Mar. 5, 1998, S.D. Ill.). It agreed that, in light of
Rutledge
, one of Kramer’s convictions must be vacated. The
court vacated his conviction and sentence on the
The court rejected Kramer’s second argument, that the ju-
ry instructions on his
The following day, the district court issued its judgment.
It vacated Kramer’s
4. The Supreme Court’s Opinion in
Richardson
In 1999, the Supreme Court decided
Richardson v. United
States,
yet another case on appeal from this court regarding a
The Supreme Court reversed. It held that “a jury in a fed-
eral criminal case brought under
5. Kramer’s 1999 Section 2241 and
The district court ruled on Kramer’s petition in July 2002.
See Kramer v. United States
, No. 99-Civ-0684-JLF (Jul. 25, 2002,
S.D. Ill.). The court concluded that it lacked jurisdiction over
Kramer’s
The court found that it lacked jurisdiction under
On December 20, 2002, Kramer refiled his petition, again
under both
Kramer appealed the district court’s dismissal, and we af-
firmed.
See Kramer v. Olson,
6. Magwood and Suggs
In 2010, the Supreme Court decided
Magwood v. Patterson,
the case that forms the basis of Kramer’s current
Billy Joe Magwood was convicted in Alabama state court of killing the Sheriff of Coffee County, and he was sentenced to death. Having exhausted his state remedies, he filed a pe- tition for a writ of habeas corpus under section 2254 in the Middle District of Alabama. The district court upheld Mag- wood’s conviction but vacated his death sentence. The Court of Appeals for the Eleventh Circuit affirmed.
The state trial court then held a resentencing hearing, and it again imposed the death penalty. After again exhausting his state court remedies, Magwood filed a section 2254 peti- tion for a writ of habeas corpus, challenging his new death sentence. He argued that his death sentence was unconstitu- tional, because “he did not have fair warning at the time of his offense that his conduct would be sufficient to warrant a death sentence under Alabama law.” Id. at 328.
Under
On appeal, the government argued that the question of whether a petition was “second or successive” was “ claim- focused ”. Id. at 331 (internal quotations omitted) (emphasis added). According to the government, “the phrase should be read to reflect a principle that a prisoner is entitled to one, but only one, full and fair opportunity to wage a collateral attack.” Id. The government argued that Magwood’s fair- warning challenge had been available to him from the start: both when he was sentenced to death the first time and dur- ing his subsequent collateral review. Magwood failed to raise it then, and the government argued that this failure rendered his petition successive.
The Court rejected the government’s reading of sec- tion 2244(b)(3)(A). Noting that “second or successive” is a term of art in the habeas context, the Court turned to the phrase’s statutory context to interpret it. It concluded that “second or successive” refers to the state court judgment be- ing challenged. And in Magwood’s case, he was challenging a judgment that had not been the subject of his first 2254 mo- tion. His first death sentence, the subject of his prior sec- tion 2254 motion, had been vacated. The judgment that he now challenged was the death sentence that had been sub- sequently imposed, after a new sentencing hearing. There- fore, the Court concluded, Magwood’s petition was not suc- cessive.
Just prior to concluding its opinion, the Court stated the following:
The State objects that our reading of§ 2244(b) would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent applica- tion challenging not only his resulting, new sen- tence, but also his original, undisturbed conviction. The State believes this result follows because a sen- tence and conviction form a single “judgment” for purposes of habeas review. This case gives us no occasion to address that question, because Mag- wood has not attempted to challenge his underly- ing conviction. We base our conclusion on the text, and that text is not altered by consequences the State speculates will follow in another case.
Id.
at 342 (emphasis in original). This language would be crit-
ical to our application of
Magwood
in
Suggs v. United States
,
In
Suggs
, defendant Alonzo Suggs was convicted of a
federal drug offense and sentenced to 300 months in prison.
Under
After his resentencing, Suggs obtained new information that he claimed established his innocence. He requested permission from this court to bring a second section 2255 motion, so that he could challenge his conviction in light of the newly-discovered evidence. We denied his request. He then filed a new motion under section 2255 in the district court. He argued that his motion “should not be barred as ‘second or successive’ because his resentencing imposed a new judgment such that his new motion under section 2255 should not be barred.” Id. at 281.
So, the Suggs facts seemed to present precisely the ques- tion that the Supreme Court noted, without deciding, in Magwood : Suggs sought to challenge his underlying convic- tion, which had been undisturbed by the vacatur of his prior sentence and his resentencing. Did this constitute a “new judgment” under Magwood ? If so, his section 2255 motion would be not be considered successive.
Prior to
Magwood,
our circuit precedent had established
that “such motions after resentencing are not second or suc-
cessive when they allege errors made during the resentenc-
ing, but they are second or successive when they challenge
the underlying conviction.
Id.
at 282 (citing
Dahler v. United
States
,
We disagreed. We concluded that “because
Magwood
ex-
pressly declined to extend its holding to the facts before us
here, it did not disturb our circuit’s precedent,
Dahler,
which
applies to Suggs’ motion and required the district court to
dismiss it as second or successive.”
Suggs
,
7. Kramer’s Current Petition
On June 12, 2014, Kramer filed a section 2255 motion in the Southern District of Illinois, seeking to vacate his sec- tion 848 conviction. The district court concluded, applying Suggs , that Kramer’s motion was “second or successive.” See Kramer v. United States , No. 14-cv-678 (Aug. 8, 2014, S.D. Ill.). It dismissed Kramer’s petition for lack of jurisdiction, but it granted a certificate of appealability on the issue of whether “Kramer’s pending motion was an unauthorized successive petition under Magwood .” Kramer appealed.
II. A NALYSIS
Underlying Kramer’s current section 2255 motions is the Supreme Court’s holding in Richardson . It is beyond dispute that, in Richardson, the Supreme Court invalidated the very jury instruction that was employed in Kramer’s case. If Kra- mer were tried today, the jury would be required to unani- mously agree on the three predicate felonies used to make up the “continuing series” of CCE violations. There is no question that this requirement was not imposed on the jury that convicted Kramer in 1988. Kramer argues that it is fun- damentally unfair to detain him, in light of Richardson ’s hold- ing that his jury instructions were infirm.
But Kramer faces a procedural hurdle imposed by section 2255 itself. There is no doubt that, on the merits, Richardson speaks to the very issue Kramer has raised throughout his confinement, on both direct and collateral review. But, based on the procedural requirements imposed by the statute, we cannot address the merits of Kramer’s claim until we have established that we have jurisdiction.
Kramer is barred from bringing a successive section 2255 motion, unless his petition falls into one of the narrow ex- ceptions permitted (noted above) for a subsequent motion. [4] Kramer argues, however, that his petition should be consid- ered a first , non-successive motion. Acknowledging that our prior holding in Suggs would foreclose his claim if it applied, Kramer argues that Suggs should not be expanded to cover the circumstances of his claim. Kramer argues that Mag- wood ’s reasoning dictates the conclusion that his claim is not successive. We disagree.
Kramer argues that Suggs is inapplicable to his case, be- cause Suggs involved only the vacatur of a sentence and not an underlying conviction . Kramer’s successful section 2255 motion resulted in the vacatur of a conviction . That differ- ence, Kramer argues, renders Suggs distinguishable and his judgment “new” under Magwood.
Kramer is correct in stating that Suggs did not involve the prior vacatur of a conviction. But Kramer does not explain why that distinction is meaningful for the purposes of a Mag- wood analysis. Both Suggs and Kramer employed later sec- tion 2255 motions to challenge convictions that were undis- turbed by their prior motions and judgments. In Kramer’s case, the court expressly denied Kramer’s requested relief on the section 848 conviction that is the subject of Kramer’s cur- rent petition.
Indeed, Suggs had an arguably stronger claim than Kra- mer that, under Magwood , his motion should be considered non-successive. The conviction that Suggs sought to chal- lenge was the very one that resulted in both the vacated and new sentences. In Kramer’s case, he is seeking to challenge an entirely separate conviction. Only Kramer’s section 846 conviction and sentence were implicated by his successful section 2255 motion. Both his sentence and his conviction for the section 848 were entirely undisturbed.
Moreover, underlying our decision in Suggs was the weight of stare decisis . The Supreme Court expressly declined to weigh in on the result in a case where a petitioner who had raised a successful sentencing challenge under section 2255 and then later raised another 2255 claim challenging the underlying conviction. In light of that uncertainty, we con- cluded we were bound to continue to follow our own estab- lished precedent. This is no less true under Kramer’s facts than under those presented in Suggs.
Finally, we acknowledge, as the district court did in
granting Kramer’s certificate of appealability, that “jurists of
reason, like Judge Sykes in her
Suggs
dissent, would find de-
batable the issue of whether Kramer’s pending motion was
an unauthorized successive petition after
Magwood.
”
Kramer
,
No. 14-cv-678 at *3. Judge Sykes’s well-reasoned dissent
thoroughly presented why
Magwood
could be read to have
displaced our prior precedent in
Dahler. Suggs,
705 F.3d at
285 (Sykes, J., dissenting). Indeed, as Judge Sykes pointed
out, our opinion in that case reflected a circuit split on the
Suggs
issue that continues to the present time.
See Insignares
v. Sec’y, Fla. Dep’t of Corr.,
In our view, the real disagreement lies with Suggs , and Kramer does not ask us to revisit our opinion in that case. In addition, Kramer does not address what we see as the fun- damental question underlying the circuit split: what consti- tutes the petitioner’s “judgment”? The Eleventh Circuit con- cluded, for example, that “[h]aving reviewed Magwood and the cases of other circuits, we return to the basic proposition [that] … there is only one judgment, and it is comprised of both the sentence and the conviction.” Insignares, 755 F.3d at 1281. Having concluded that a conviction and sentence com- prised one judgment , the Eleventh Circuit necessarily held that a resentencing results in an entirely new judgment. As such, the underlying conviction may then be challenged by a first—not successive—section 2255 motion.
So, we view Suggs as controlling the outcome here. We conclude that the district court properly characterized Kra- mer’s section 2255 motion as successive, and the district court correctly concluded that it lacked jurisdiction over Kramer’s motion.
Finally, Kramer raised several other arguments in his briefs to this court. We decline to reach them for two reasons. First, we confine our review to the question specifically certi- fied by the district court on appeal. And second, at oral ar- gument, Kramer withdrew his final two arguments.
III. C ONCLUSION
For the reasons above, we AFFIRM the judgment of the district court.
Notes
[1] The indictment lists eighteen offenses, but four of those appear to apply only to one of Kramer’s codefendants.
[2]
See
[3] The same requirements apply to motions under both section 2254 and
[4]
See