The opinion of the court was delivered by: Reagan, District Judge
Petitioner Stanley Prince filed this action pursuant to 28 U.S.C. § 2241 to challenge his sentence enhancement as an armed career criminal under 18 U.S.C. § 924(e).
Prince pleaded guilty to being a felon in possession of a firearm and to possessing with intent to distribute a mixture or substance containing a detectable amount of heroin, for which he is serving a total term of 188 months imprisonment. United States v. Prince, Case No. 04-cr-056-ERW (E.D. Mo. filed Jan. 28, 2004). As part of his plea agreement, Prince waived his right to appeal and to pursue post-conviction relief pursuant to 28 U.S.C. § 2255. Id. Despite his waiver, Prince pursued, but was denied, relief pursuant to 28 U.S.C. § 2255. Prince v. United States, Case No. 05-cv-506-ERW (E.D. Mo. filed March 28, 2005).
The gravamen of the instant § 2241 action is Prince's claim that he did not have the required prior felony convictions necessary to trigger the application of the enhanced sentence provided by 18 U.S.C. § 924(e). Specifically, Prince contends (1) that two prior state court convictions for burglary in the second degree are not violent felonies under § 924(e) in light of the Supreme Court's decision in Begay v. United States, - U.S. -, 128 S.Ct. 1581,1586 (2008); (2) that a state court conviction for unlawful possession of a concealable firearm is not a violent felony under § 924(e) (2)(B)(i); and (3) that a state court conviction for possessing a controlled substance in a correctional facility is not a serious drug offense for purposes of § 924(e)(2)(A)(ii).
The analysis of Prince's § 2241 habeas corpus petition in this Court begins and ends with 28 U.S.C. § 2255. Typically, § 2255 is the exclusive means by which a federal prisoner may collaterally attack his conviction. Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). A federal prisoner may not seek relief pursuant to 28 U.S.C. § 2241 unless he can first show that § 2255 is "inadequate or ineffective" to test the legality of his detention. 28 U.S.C. § 2255(e).
In the Seventh Circuit, § 2255 is "inadequate or ineffective" in this context only in those cases in which the statute's provisions prevent a prisoner from obtaining judicial review of a legal theory that establishes his "actual innocence." Kramer, 347 F.3d at 217. Thus, in order to succeed Prince must show that the legal theory he advances relies on a change in law that (a) postdates his first § 2255 motion and (b) fails to satisfy the provisions of § 2255 for successive motions. Id. Additionally, Prince must establish that his legal theory "supports a non-frivolous claim of 'actual innocence.'" Id.
With regard to his first habeas claim (concerning his burglary convictions) Prince relies on a legal theory that post-dates his § 2255 motion. The Begay case on which Prince relies was not decided until 2008, several years after his § 2255 motion was denied. Supra. Therefore, Prince clears the first hurdle with respect to his first claim (concerning the burglary convictions), but does not clear this hurdle with respect to his second (firearm conviction) and third (controlled substance conviction) claims. The next step is to determine if Prince's legal theory fails to satisfy § 2255's provisions governing successive motions.
In order to bring a second or successive motion pursuant to § 2255, a petitioner must convince the appellate court of the circuit of his conviction that (a) there is newly discovered evidence that clearly and convincingly establishes that no reasonable factfinder would have found the movant guilty of the crime of conviction; or (b) there is a new (and material) rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, that was not previously available. 28 U.S.C. § 2255(h)(1-2).
With respect to his first habeas claim, Prince's legal theory is not based on "newly discovered evidence" demonstrating he is actually innocent of the crime of conviction. Nor is it based on a new rule of constitutional law. Rather, it is based on a decision of statutory construction by the Supreme Court. See Begay v. United States, 128 S.Ct. 1581 (2008). Thus, his legal theory does not fall within either of § 2255's provisions allowing second or successive motions, and he clears the second hurdle with regard to his first habeas claim. However, Prince stumbles on the last hurdle because, as will be made clear, his legal theory does not establish a "non frivolous" claim of actual innocence of the crimes to which he pleaded guilty.
Prince claims he is "actually innocent," not of the federal crimes for which he pleaded guilty, but of being a "armed career criminal" pursuant to 18 U.S.C. § 924(e). His claim, in other words, is that, in retrospect, the sentencing court misapplied 18 U.S.C. § 924(e) resulting in a lengthier sentence being imposed on him than he should have received for the crimes he pleaded guilty to committing. Unfortunately for Prince, such claims are not appropriate for collateral review. Montenegro v. United States, 248 F.3d 585, 596 (7th Cir. 2001) (citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993)); also see In re Davenport, 147 F.3d 605, 609-610 (7th Cir. 1998).*fn2 Prince was not convicted of being an "armed career criminal." It is not a "crime" to be a "armed career criminal offender." Rather, that status is a sentencing enhancement that acts to increase the sentence of a convicted defendant that meets the statutory definition. See 18 U.S.C. § 924(e). It is intended to ensure increased sentences for recidivist offenders who committed crimes of violence or drug offenses. See United States v. Labonte. 520 U.S. 751, 774, 117 S.Ct. 1673 (1997). Being innocent of being an armed career criminal is innocence only in a "technical sense," which is insufficient to show that § 2255 is "inadequate or ineffective" and, thus, allow a § 2241 petition by a federal prisoner. In re Davenport, 147 F.3d 605, 609-610 (7th Cir. 1998). Instead, such a claim is appropriate for a direct appeal or a § 2255 motion to vacate or modify sentence.
Prince filed a § 2255 motion without success. However, his lack of success or even the fact that, in retrospect, an error may have been made in his sentence does not show § 2255 to be "inadequate or ineffective" as the law defines those terms. See Taylor v. Gilkey, 314 F.3d 832, 835-836 (7th Cir. 2002). In sum, Prince's claim falls short of ...