The opinion of the court was delivered by: G. MURPHY, Chief District Judge
Petitioner, an inmate in the Federal Correctional Institution
in Greenville, 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 drug and firearms
charges, was adjudicated an armed career criminal in the District
of Minnesota, and was sentenced to 360 months imprisonment. His
sentence was affirmed by the Court of Appeals for the Eighth
Circuit in 1997. Petitioner sought and was denied habeas corpus
relief in the sentencing court pursuant to 28 U.S.C. § 2255 in
1998. 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
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. United
States, 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);
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 Court of Appeals considered
the meaning of "inadequacy" for purposes of § 2255. The Court
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 (emphasis added).
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. Instead, he challenges the
constitutionality of his sentence, the ineffective assistance of
his counsel, and violations of due process in his conviction.
These challenges are not cognizable in a petition under
28 U.S.C. § 2241. Accordingly, Petitioner cannot obtain the relief he
desires through § 2241.
Therefore, this action is DISMISSED with prejudice.
This action came before the Court for preliminary consideration
of Petitioner's application for writ of habeas corpus. The Court
has rendered the following decision:
IT IS ORDERED AND ADJUDGED that the petition for writ of
habeas corpus is summarily dismissed with prejudice. Judgment is
entered in favor of Respondent and against Petitioner. ...