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WALLS v. VELTRI
October 19, 2005.
BANTHONY WALLS, Petitioner,
DARLENE VELTRI, Respondent.
The opinion of the court was delivered by: WILLIAM STIEHL, Senior 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 2000 of conspiracy to
distribute a controlled substance in the Central District of
Illinois and was sentenced to 288 months imprisonment. Petitioner
sought and was denied habeas corpus relief in the sentencing
court pursuant to 28 U.S.C. § 2255 in April 2002. The Seventh
Circuit denied a certificate of appealability in July 2002.
Petitioner now brings this action pursuant to section 2241
seeking release from federal custody.
Petitioner entered into a plea agreement with the government in
which he waived his right to appeal his sentence or to file a
collateral attack on his sentence via 28 U.S.C. § 2255. However,
because Apprendi v. New Jersey, 530 U.S. 466 (2000), was
decided between the time Petitioner pleaded guilty and the time
he was sentenced, the government and Petitioner agreed to add an
exception to the waiver of appeal and collateral attack. Namely,
they agreed that Plaintiff would be able to attack his sentence
if it were later determined that Apprendi applied to the
sentencing guidelines as a whole. Plaintiff now argues that based on the
Supreme Court's recent decisions in Blakely v. Washington,
542 U.S. 296 (2004) and United States v. Booker, 125 S.Ct. 738
(2005) coupled with Apprendi, he should be able to attack his
sentence via 28 U.S.C. § 2241.
IT IS HEREBY ORDERED that Respondent shall, within
twenty-three (23) days of receipt of this application for Writ of
Habeas Corpus, answer and show cause why the writ should not
issue. Service upon the United States Attorney for the Southern
District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois, shall constitute sufficient service. Respondent is
directed to address specifically whether the stipulation in
Petitioner's plea agreement encompasses this section 2241
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2),
this cause is referred to a United States Magistrate Judge for
further pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be referred to
a United States Magistrate Judge for disposition, as contemplated
by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
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