The opinion of the court was delivered by: Gilbert, District Judge
This matter is before the Court on Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 3). Rule 4 of the Rules Governing § 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.
Petitioner pleaded guilty to using a computer to transport and ship child pornography in interstate commerce in violation of 18 U.S.C. § 2252A(a)(1). Petitioner was sentenced to 210 months' imprisonment. Petitioner appealed his sentence, but it was affirmed by Seventh Circuit. United States v. Phillippe, No. 06-2087 (7th Cir., Dec. 22, 2006). Petitioner did not seek a writ of certiorari to the Supreme Court of the United States nor has he sought relief from this Court pursuant to 28 U.S.C. § 2255.
On December 21, 2007, however, Petitioner's counsel did open a case electronically (i.e., this case). Puzzlingly, no petition, pleading, or motion was filed at the time this case was electronically opened. In fact, no filing was made in this case until March 6, 2009, when the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 was filed. The brief petition claims that: (1) Petitioner's trial counsel was in effective; (2) Petitioner was never fully informed about the consequences of his plea: (3) that counsel should have requested a change in judge due to the alleged prejudice of the undersigned against him; (4) appellate counsel was ineffective; and (5) the sentence violates Petitioner's Fifth and Eighth Amendment rights.
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 usually supersedes the writ of habeas corpus. A § 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). 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."). 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.
In this case, Petitioner has not argued that he is one of those for whom the § 2255 motion is inadequate or ineffective to test the legality of his detention. And while, at this point, a § 2255 motion would appear to be untimely, "[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 § 2255's substantive and procedural barriers by themselves do not establish that § 2255 is inadequate or ineffective); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Instead, a petitioner under § 2241 must demonstrate the inability of a § 2255 motion to cure the defect in the conviction.
In In re Davenport, 147 F.3d 605 (7th Cir. 1998), 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).
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).
When, then, may a petitioner successfully argue that he is "actually innocent" under Davenport? The Seventh Circuit has 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. Therefore, § 2241 cannot provide Petitioner with the desired relief, and this action is summarily DISMISSED with prejudice.
J. Phil Gilbert U. S. ...