The opinion of the court was delivered by: J. GILBERT, 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 to challenge the validity of the 29-year sentence
he is currently serving. In 1992, Petitioner was convicted of
aggravated bank burglary, use of a firearm during a crime of
violence, and possession of a firearm by a felon. On direct
appeal, Petitioner challenged the house search, the use of a
photo array for identification, and a sentencing enhancement
under U.S.S.G. § 2K2.1. Each of those arguments was rejected; his
conviction and sentence were affirmed. United States v.
Johnson, 12 F.3d 1103, Case No. 93-2071MN (8th Cir., decided
Nov. 29, 1993). Petitioner subsequently filed a motion under
28 U.S.C. § 2255; that motion was denied. Johnson v. United
States, Case No. 97-cv-894-ADM (D.Minn., filed April 14, 1997).
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 may challenge his federal conviction only by
means of a motion brought before the sentencing court pursuant to
28 U.S.C. § 2255, and this remedy normally supersedes the writ of
habeas corpus. A Section 2241 petition by a federal prisoner 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).
However, a petition challenging the conviction may be brought
pursuant to 28 U.S.C. § 2241 if the remedy provided by
28 U.S.C. § 2255 is inadequate or ineffective. See also Waletski v.
Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) ("prisoner who
challenges his federal conviction or sentence cannot use [§ 2241]
at all but instead must proceed under 28 U.S.C. § 2255.").
Petitioner contends that he is one of those for whom the
Section 2255 motion is inadequate or ineffective to test the
legality of his detention. However, the fact that Petitioner may
be barred from bringing a second 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). 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 (emphasis added). The Circuit later 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).
In the instant case, Petitioner challenges the validity of a
prior state court conviction for auto theft in Indiana, which he
claims was used to enhance his federal sentence. Specifically, he
states that the auto theft conviction was the result of a guilty
plea made on the advice of counsel, advice so poor as to
constitute ineffective assistance of counsel. The sole basis for
this contention seems to be a statement Counsel made at the state
court sentencing, a statement that Petitioner interprets as
Counsel's assertion that Petitioner was innocent.*fn1
According to the sentencing transcript, the relevant portion of
which is attached to the instant petition, Counsel stated:
There is nothing in the record to show that he
actually stold [sic] a car or that he was stripping
it or anything of that nature. He was driving it and
knew it to be stolen. He came into possession of the
vehicle eventually by being told that it was
available for use. And while he does fall within the
statute, I think it's different than someone who is
stealing a vehicle and stripping it or is involved in
some sort of ring in doing that.
State v. Johnson, Cause No. 45G03-9008-CF-00148 (Lake County,
Indiana; transcript of sentencing hearing held Nov. 7, 1990)
(Doc. 1, Exh. 1-3).
This statement does not support Petitioner's contention that he
is "actually innocent" of one of the state crimes was used to
enhance his federal sentence. Rather, this statement concedes
Petitioner's guilt of being in knowing possession of a stolen
vehicle. Although the state statute at issue is not mentioned, the Court takes judicial notice of the
current Indiana statute regarding auto theft, a statute that has
remained virtually unchanged since 1987.
A person who knowingly or intentionally exerts
unauthorized control over the motor vehicle of
another person, with intent to deprive the owner of . . .
the vehicle's value or use . . . commits auto
theft, a Class D felony.
IC § 35-43-4-2.5(b)(1).
Counsel's statement acknowledges that Petitioner's actions did,
in fact, fall within the elements of the crime as defined in this
statute, and therefore Petitioner's interpretation of Counsel's
statement is incorrect. It follows that his reliance upon this
statement as evidence of Counsel's ineffectiveness is misplaced.
Petitioner also claims that he was unable to present this claim
sooner because "petitioner's state court sentencing proceeding
was not disclosed to petitioner until 2004" (Doc. 1, p. 5), thus
precluding his counsel in the federal proceeding from making the
arguments contained in the instant petition. As support for this
argument, Petitioner attaches an exhibit a copy of an order from
the Indiana state court dated January 28, 2004, granting his
request for copies of relevant documents in his state court case.
Petitioner's argument is without merit. First, the Indiana
sentencing hearing was held on November 7, 1990, yet Petitioner
waited over 13 years to request a transcript or copies of any
pleadings from that case. Second, a claim that the sentencing
proceeding "was not disclosed" to him prior to 2004 is blatantly
misleading; the exhibits attached to the instant petition clearly
state that Petitioner was present for that hearing. To claim now
that he did not know what happened at that state court hearing in
1990, or that he was unable to advise his counsel of those
proceedings prior to his federal sentencing in 1992, is
disingenuous at best, if not patently false. Therefore, Section 2241 cannot provide Petitioner with the
desired relief, and this action is summarily DISMISSED with