United States District Court, E.D. Arkansas, Pine Bluff Division
LARRY B. PAINTER, Reg # XXXXX-XXX, Petitioner,
UNITED STATES OF AMERICA, Respondent.
BETH DEERE, Magistrate Judge.
I. Procedure for Filing Objections
The following Recommended Disposition ("Recommendation") has been sent to United States District Court Judge Susan Webber Wright. Mr. Painter - or any party - may file written objections to this Recommendation.
Objections must be specific and must include the factual or legal basis for the objection. An objection to a factual finding must identify the finding of fact believed to be wrong and describe the evidence that supports that belief.
An original and one copy of objections must be received in the office of the United States District Court Clerk within fourteen (14) days of this Recommendation. A copy will be furnished to the opposing party.
If no objections are filed, Judge Wright can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.
Mail your objections to:
Larry B. Painter filed this petition for writ of habeas corpus under 28 U.S.C. § 2241. (Docket entry #2) In the petition, he challenges the same federal sentence he previously challenged under both 28 U.S.C. § 2241 and 28 U.S.C. § 2255. For reasons explained in this Recommendation, the Court will recommend that Judge Wright summarily dismiss the Petition without prejudice.
On August 25, 2003, a federal judge in the Western District of Missouri sentenced Mr. Painter to a 180-month term of imprisonment after he pleaded guilty to firearm possession offenses in violation of 18 U.S.C. § 922(g)(1) and (3). After his conviction, Mr. Painter appealed his sentence to the Eighth Circuit Court of Appeals, arguing that the sentencing court should not have considered a prior California burglary conviction as a crime of violence for purposes of applying 18 U.S.C. § 924(e), a sentencing enhancement provision. U.S. v. Painter, 400 F.3d 1111 (8th Cir. 2005). The Court of Appeals rejected Mr. Painter's argument and affirmed the district court's judgment. Id.
On November 21, 2006, Mr. Painter filed a petition under 28 U.S.C. § 2255, in the Western District of Missouri, arguing that his prior burglary conviction was not a "violent felony" and should not have been considered as such for sentencing purposes. Painter v. U.S., 2007 WL 1051682 (W.D.Mo. 2007). The district court rejected this claim and denied the § 2255 petition. The Court of Appeals then denied Mr. Painter's motion for a certificate of appealability. Painter v. U.S., Case No. 07-2468 (8th Cir. December 4, 2007).
On December 31, 2007, Mr. Painter brought a petition for writ of habeas corpus in this Court under 28 U.S.C. § 2241. In that petition, he challenged the validity of a Missouri state escape conviction. This Court held that it lacked jurisdiction to address the validity of the Missouri conviction because Mr. Painter was no longer in custody under the state sentence. On August 18, 2009, the Eighth Circuit affirmed. Painter v. Outlaw, 324 Fed.Appx. 47, 48, 2009 WL 2502122 (8th Cir. 2009).
Undeterred, Mr. Painter filed another § 2241 petition in this Court, claiming that his Missouri escape conviction was wrongly deemed a violent felony by the federal sentencing court under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Painter v. Outlaw, 2010 WL 2366423 (E.D.Ark. 2010). Mr. Painter claimed the escape was a "walkaway escape" from confinement in a facility with "no fences, locked doors or guards, " and that under Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687 (2009), the escape conviction could no longer be characterized as a violent felony. Id. As with Mr. Painter's previous § 2241 petition, the Court dismissed this second §2241 petition without ...