The opinion of the court was delivered by: JAMES FOREMAN, District Judge
Petitioner, an inmate in the United States Penitentiary in
Marion, Illinois, brings this habeas corpus action pursuant to
28 U.S.C. § 2241. In his petition, Petitioner indicates that he was
convicted in 1996 of being a felon in possession of a firearm in
the Eastern District of California and was sentenced to 289
months imprisonment. His sentence was affirmed by the Court of
Appeals for the Ninth Circuit in 1998. Petitioner sought and was
denied habeas corpus relief in the sentencing court pursuant to
28 U.S.C. § 2255 in 2000. Petitioner now brings this action
pursuant to Section 2241 seeking release from federal custody.
Rule 4 of the Rules Governing Section 2254 Cases in United
States District Courts provides that upon preliminary
consideration by the district court judge, "[i]f it plainly
appears from the face of the petition and any exhibits annexed to
it that the petitioner is not entitled to relief in the district
court, the judge shall make an order for its summary dismissal
and cause the petitioner to be notified." Rule 1(b) of those
Rules gives this Court the authority to apply the rules to other
habeas corpus cases. After carefully reviewing the petition in
the present case, the Court concludes that Petitioner is not entitled to relief, and the petition must be dismissed.
Normally a person in federal custody may challenge his
conviction only by means of a motion brought before the
sentencing court pursuant to 28 U.S.C. § 2255. In certain cases,
a prisoner may use the general habeas statute, 28 U.S.C. § 2241,
to obtain relief, but this method is generally limited to
challenges to the execution of the sentence. Valona v. United
States, 138 F.3d 693, 694 (7th Cir. 1998); Atehortua v.
Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Section 2241 may
not be used as a substitute for Section 2255 where a Petitioner
has already sought but been denied relief under Section 2255, or
where Petitioner no longer has an opportunity to seek relief
under Section 2255 because of the Section's one-year period of
limitation. See e.g. Cooper v. United States, 199 F.3d 898, 901
(7th Cir. 1999).
A petition challenging the conviction may be brought pursuant
to 28 U.S.C. § 2241 where the remedy provided by 28 U.S.C. § 2255
is inadequate or ineffective. However, the fact that Petitioner
may be barred from bringing a Section 2255 petition is not, in
itself, sufficient to render it an inadequate remedy. In re
Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998) (§ 2255
limitation on filing successive motions does not render it an
inadequate remedy for a prisoner who had filed a prior Section
2255 motion). Further, "[f]ailure to comply with the requirements
of the § 2255 statute of limitations is not what Congress meant
when it spoke of the remedies being `inadequate or ineffective to
test the legality of his detention.'" Montenegro v. U.S.,
248 F.3d 585 (7th Cir. 2001), overruled on other grounds, Ashley
v. United States, 266 F.3d 671 (7th Cir. 2001).*fn1
See also Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000)
("Neither will a claim of procedural bar suffice to demonstrate that Section 2255 relief is inadequate or
ineffective."); United States v. Barrett, 178 F.3d 34, 49-50
(1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000);
Triestman v. United States, 124 F.3d 361, 376 (2d Cir.
1997) (noting that Section 2255's substantive and procedural
barriers by themselves do not establish that Section 2255 is
inadequate or ineffective); In re Dorsainvil, 119 F.3d 245, 251
(3d Cir. 1997). Instead, a petitioner under Section 2241 must
demonstrate the inability of a Section 2255 motion to cure the
defect in the conviction.
In Davenport, the Seventh Circuit considered the meaning of
"inadequacy" for purposes of § 2255. The Circuit stated that "[a]
procedure for post-conviction relief can fairly be termed
inadequate when it is so configured as to deny a convicted
defendant any opportunity for judicial rectification of so
fundamental a defect in his conviction as having been imprisoned
for a nonexistent offense." Davenport, 147 F.3d at 611
Every court that has addressed the matter has held
that § 2255 is "inadequate or ineffective" only when
a structural problem in § 2255 forecloses even one
round of effective collateral review and then only
when as in Davenport the claim being foreclosed is
one of actual innocence. See, e.g., Cradle v. United
States ex rel. Miner, 290 F.3d 536, 538-39 (3d
Cir. 2002); In re Jones, 226 F.3d 328, 333-34
(4th Cir. 2000); Reyes-Requena v. United
States, 243 F.3d 893, 902-03 (5th Cir. 2001);
United States v. Peterman, 249 F.3d 458, 462
(6th Cir. 2001); Wofford v. Scott,
177 F.3d 1236, 1244 (11th Cir. 1999).
Taylor v. Gilkey, 314 F.3d 832
, 835-36 (7th Cir. 2002).
When, then, may a petitioner successfully argue that he is
"actually innocent" under Davenport? The Seventh Circuit
recently clarified this standard, stating that "actual innocence"
is established when a petitioner can "admit everything charged in
[the] indictment, but the conduct no longer amount[s] to a crime
under the statutes (as correctly understood)." Kramer v. Olson,
347 F.3d 214, 218 (7th Cir. 2003).
Such is not the case here. Petitioner does not suggest that the
charged conduct is no longer a crime. Accordingly, Petitioner cannot obtain the relief he
desires through § 2241.
Therefore, this action is summarily DISMISSED with prejudice.