A federal prisoner trying to challenge his sentence has again tripped over procedure and lost his second appeal before the 7th Circuit Court of Appeals.
Jimmie Poe, Sr., was convicted of nine counts of narcotics-related offenses and one count of engaging in a continuous criminal enterprise in 1996. He was sentenced to 30 years and is currently at the Terre Haute Federal Correctional Institution.
In July 1999, he petitioned for a writ of habeas corpus under 28 U.S.C. 2241, appealing his CCE conviction. He relied on the ruling from the Supreme Court of the United States in Richardson v. United States, 526 U.S. 813 (1999) that held that a jury must agree unanimously that the underlying individual criminal violations are elements of the CCE.
The U.S. District Court for the Southern District of Indiana, Terre Haute Division, dismissed the 2241 petition as procedurally improper and advised Poe to file a 2255 petition. In March 2003, Poe followed the advice and filed the other petition but it was denied by the district court as untimely.
In November 2006, the 7th Circuit affirmed the denial of Poe’s 2255 petition. However, the panel noted even if the petition had been timely, it would have collided with the 7th Circuit’s caselaw that holds a Richardson error to be harmless where the jury unanimously convicted the defendant of two or more separate drug offenses along with the CCE offense.
In October 2014, Poe tried again and filed another 2241 petition, claiming his conviction and sentence were unconstitutional. This time he pointed to the Supreme Court’s 2013 ruling in Alleyne v. United States, 133 S. Ct. 2151 (2013), which found that any fact that increases the mandatory minimum of a sentence is an element of the crime that must be submitted to the jury.
Again the district court denied this petition but granted a certificate of appealability. Poe then returned to Chicago where the 7th Circuit affirmed in Jimmie Darrell Poe, Sr. v. Leann LeRiva, Warden, 14-3513.
The 7th Circuit noted federal prisoners seeking to overturn their conviction or sentences may file a petition under 2241 if the remedy under 2255 is inadequate or ineffective. Here Poe’s claim fails because he did not demonstrate that there is a structural problem with the 2255 petition which is preventing him from seeking relief to which he is entitled.
The unanimous panel also denied Poe’s request that the circuit court construe his petition as a request for leave to file a successive 2255 petition.