United States District Court, E.D. Kentucky, Northern Division, Ashland
ROBERT J. CANTRELL, Petitioner,
MICHAEL SEPANEK, WARDEN, Respondent.
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
Robert J. Cantrell is an inmate confined in the Federal Correctional Institution located in Ashland, Kentucky. Cantrell has filed, by and through his counsel [D. E. No.3] a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his 2008 federal conviction for honest services fraud and his 78-month sentence. [D. E. No. 1] Cantrell has paid the $5.00 filing fee. [ Id. ]
The Court reviews the § 2241 petition to determine whether, based on the face of the petition and any exhibits attached thereto, Cantrell is entitled to relief. See Rule 4, Rules Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241 petitions under Rule l(b)). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa. 1979); see also 28 U.S.C. § 2243. A district court may summarily dismiss a petition if it appears from its face that the petitioner is not entitled to relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F.Appx. 216, 218 (6th Cir. 2001); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970).
The Court has reviewed Cantrell's habeas petition, various attachments thereto, and memorandum of law, but determines that it must deny the petition because Cantrell cannot not pursue his claims under 28 U.S.C. § 2241.
In March 2007, an eleven-count indictment was handed down in an Indiana federal court, charging Cantrell with committing honest services fraud by using his position in public office to steer contracts to a third party in exchange for kickbacks, in violation of 18 U.S.C. §§ 1341 and 1346; insurance fraud by deceptively procuring coverage for two of his children, in violation of 18 U.S.C. § 1341; and filing false income tax returns by not reporting the kickbacks, in violation of 26 U.S.C. § 7206(1). United States v. Cantrell, No. 2:07-CR-44-PRC (N. D. Ind. 2007).
On June 6, 2008, a jury convicted Cantrell on all eleven counts. [ Id., D. E. No. 67, therein] On March 31, 2009, Cantrell was sentenced to a 78-month prison term, plus a 3-year term of supervised release. [ Id., D. E. No. 128, therein] Cantrell appealed, primarily challenging his sentence on the grounds that the district judge applied an incorrect guideline and failed to address his arguments for leniency, but he also preserved a challenge to his four convictions on the honest services fraud counts, arguing that because 18 U.S.C. § 1346 was unconstitutionally vague, he was thus improperly charged with and convicted of that offense. The Seventh Circuit affirmed both Cantrell's sentence and his conviction on the honest services fraud counts. United States v. Cantrell, 617 F.3d 909 (7th Cir. 2010).
The Seventh Circuit explained that while Cantrell's appeal was pending, the Supreme Court decided Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896 (2010), Black v. United States, 561 U.S. 465 (2010), and Weyhrauch v. United States, 561 U.S. 476 (2010), all of which involved 18 U.S.C. § 1346, the honest services statute. Cantrell, 617 F.3d at 921. The court explained that in Skilling, the most comprehensive of the three opinions, the Supreme Court determined that the "honest services" component of the federal mail-fraud statute was not unconstitutionally vague, but narrowly interpreted § 1346 such that it criminalizes only schemes to defraud that involve bribes or kickbacks, i.e., schemes where one fraudulently deprives another of one's honest services by accepting bribes or kickbacks. Cantrell, 617 F.3d at 921 (citing Skilling, 130 S.Ct. at 2933).
Applying Skilling to Cantrell's § 1346 conviction, the Seventh Circuit stated that Cantrell was charged with using his position as a public official of North Township of Lake County, Indiana, to secure contracts with a counseling company owned by an acquaintance in exchange for a share of the proceeds (kickbacks) from the contracts, conduct which 1346 prohibits. Id. The court stated:
By failing to fairly, honestly, and candidly award contracts, Cantrell defrauded North Township and its citizens of their right to his honest services. This was clearly a kickback scheme, so § 1346-even as pared down by Skilling-applies to Cantrell. As he presents no other challenge to his convictions, they will not be disturbed.
CANTRELL'S § 2255 MOTION
On February 7, 2012, Cantrell filed a motion in the district court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See Cantrell Criminal Action, 2:07-CR-44, D. E. No. 165, therein; see also Cantrell v. United States, No. 2: 12-CV-59-RL (N.D. Ind. 2012). Cantrell challenged his convictions for honest services fraud, claiming constitutionally ineffective assistance of both his trial and appellate counsel, in violation of his rights guaranteed under the Sixth Amendment of the U.S. Constitution and the standards established in Strickland v. Washington, 466 U.S. 668 (1984), which holds that to establish ineffective assistance of counsel, the petitioner must show that his counsel's performance was deficient and that the deficient performance prejudiced him.
Cantrell alleged his trial counsel failed to allow him to testify on his own behalf and to call two key witnesses and that as a result, he was prejudiced. Cantrell further alleged that his first appellate counsel failed to adequately argue how Skilling's and Black's substantive changes in the law impacted his convictions for honest services fraud, and ...