United States District Court, S.D. Illinois
October 14, 2005.
STEPHEN JOSEPH GAINES, Petitioner,
SARAH REVELL, Respondent.
The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
MEMORANDUM AND ORDER
Petitioner, an inmate in the Federal Correctional Institution
in Greenville, Illinois, brings this habeas corpus action
pursuant to 28 U.S.C. § 2241 to challenge his 1996 conviction in
the United States District Court for the Eastern District of
Oklahoma. See United States v. Waldon, Case No. 96-cr-25 (E.D.
Okla., filed March 20, 1996). According to the petition, he was
charged with and pleaded guilty to bank robbery, being a felon in
possession of a firearm, and use of a firearm during a crime of
violence. As a result, he was sentenced to 63 months on each of
the first two counts, and to 120 months on the use-of-firearm
charge. It is this 120-month sentence that is the subject of the
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 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).
Such is not the case here. Petitioner does not suggest that the
charged conduct is no longer a crime. To the contrary, Petitioner
merely asserts that "[t]he indictment did not charge the element
of the offense which was necessary to impose the excessive
120-month sentence," and that Counsel was ineffective in failing
to object to this sentence (Doc. 1, p. 6). In particular,
Petitioner states that at sentencing, the judge "made a finding
of fact that the firearm charged in count III was a
`semi-automatic assault weapon' under 18 U.S.C. § 924(c)(1) as
the statute read in 1996" (Doc. 1, p. 7), although the indictment
did not specifically charge that any of the weapons fell into
Essentially, Petitioner argues that this 120-month sentence is
invalidated by Apprendi v. New Jersey, 530 U.S. 466 (2000),
Blakely v. Washington, 124 S.Ct. 2531 (2004), and United
States v. Booker, 125 S.Ct. 738 (U.S. Jan. 12, 2005). However,
the Seventh Circuit has held that these decisions do not apply retroactively to convictions that were
final prior to those decisions. McReynolds v. United States,
397 F.3d 479, 481 (7th Cir. 2005) (Booker and Blakely not
retroactively applicable); Curtis v. United States,
294 F.3d 841 (7th Cir. 2002) (Apprendi is not retroactively
Therefore, Section 2241 cannot provide Petitioner with the
desired relief, and this action is summarily DISMISSED with
IT IS SO ORDERED.
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