Petition for Habeas Corpus Dismissed

Listen to this article

7^th Circuit Court of Appeals

Case Name: Russell Prevatte v. Steven Merlak

Case No.: 15-2378

Officials: POSNER, MANION, and WILLIAMS, Circuit Judges.

Focus: Petition for Habeas Corpus Dismissed

Russell Prevatte was convicted of detonating a pipe bomb in an alley that destroyed property and resulted in the death of an innocent bystander, Emily Antkowicz, in violation of 18 U.S.C. § 844(i). If the pipe bomb had not caused a death, at the time of his conviction, the maximum sentence Prevatte could have received for the violation of § 844(i) would have been ten years. However, because the judge found at sentencing that the bomb did cause the death of Ms. Antkowicz, Prevatte was ultimately sentenced to forty-four years’ imprisonment on that count.

We agree with the district court that Prevatte’s petition should be dismissed, but our reasoning is different than that of the district court. First, our court has already found that Burrage is not about whether a judge or jury makes the “death results” finding, but instead clarifies that the underlying crime, in this case the detonation of the bomb, must be a but-for cause of death and not merely a contributing factor to the death. Second, Prevatte could have argued that the government did not prove that the bomb was a but-for cause of death at his trial, as part of his direct appeal or as part of his initial § 2255 motion. No circuit precedent prevented him from making such an argument. Third, and perhaps, most importantly, the unrebutted evidence at trial established that the bomb was the but-for cause of Ms. Antkowicz’s death. So Prevatte’s enhanced sentence is neither illegal nor a miscarriage of justice. For these reasons, the district court was correct in holding that Prevatte’s petition for habeas corpus should be dismissed.

Affirmed and Remanded

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.