The opinion of the court was delivered by: Reagan, District Judge
Petitioner, an inmate in the United States Penitentiary located in Marion, Illinois (USP-Marion), brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge a 71 month sentence imposed on him by the United States District Court for the Eastern District of Texas for illegal re-entry after deportation in violation of 8 U.S.C. § 1326, United States v. Ibarra-Luna, Case No. 4:08-cr-00161-MAC-DDB (E.D. Tex.), and a 15 month consecutive sentence imposed on him by the same court for violating the terms and conditions of his supervised release by committing the above-conduct. See United States v. Ibarra-Luna, Case No. 4:01-cr-00048-MAC-DDB (E.D. Tex.); see also United States v. Ibarra-Luna, 2009 WL 1181214 slip op. at *1-4 (E.D. Tex., April 30, 2009).
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 contends that his sentences violate the Double Jeopardy Clause of the United States Constitution; that his 71 month sentence for illegal re-entry violates Due Process of law because it was based on inaccurate information resulting in the application of an enhanced sentence that Petitioner asserts is inapplicable to him and, thus, illegal; that his 71 month sentence for illegal re-entry is unreasonable; and that his lawyer provided ineffective assistance of counsel by failing to advise him of the nature and consequences of his plea agreement.
Additionally, Petitioner states that his attorney failed to file a notice of appeal with respect to his conviction for illegal re-entry. However, the Court notes that Petitioner did appeal this conviction, that his counsel filed a brief pursuant to Anders v. State of California, 386 U.S. 738 (1967), and that the Fifth Circuit Court of Appeals dismissed the appeal on the basis that "no non-frivolous issues for appeal existed." United States v. Ibarra-Luna, 357 Fed. Appx.577, 2009 WL 4885155, slip op. at *1 (E.D. Tex., Dec.15, 2009).
Petitioner states that he filed no post-conviction motions(i.e., motions pursuant to 28 U.S.C. § 2255) with respect to his conviction or the revocation of supervised release and this Court can find no evidence that such were filed with the sentencing court.
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 § 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 a 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." 28 U.S.C. § 2255(e).
In the instant habeas petition, Petitioner fails to address why a motion pursuant to § 2255 was "inadequate or ineffective" to address his Double Jeopardy and other claims. Indeed, with respect to his conviction and sentence for illegal re-entry, it appears that Petitioner may still pursue a § 2255 motion with the sentencing court (in this case, the Eastern District of Texas).*fn1 At this point, however, post-conviction relief for Petitioner's 15 month sentence for violating the terms and conditions of his supervised release in his first criminal case may be untimely. See 28 U.S.C. § 2255(f). But, the fact that Petitioner may be barred from bringing a § 2255 motion is not, in itself, sufficient to render it an inadequate remedy. Cf., 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 § 2255 motion). Instead, a petitioner wishing to proceed 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, 609-10 (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). The Seventh 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).
Even when a § 2241 petitioner satisfies the "actual innocence" criteria, a federal petitioner will be permitted to proceed under § 2241 "only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion." Davenport, 147 F.3d at 611. Such is not the case here.
First, as noted above, Petitioner never pursued relief pursuant to § 2255 with respect to either his illegal re-entry sentence or the revocation of his supervised release. Second, Petitioner does not assert that there has been any change in the law that makes either his conviction or his sentences fundamentally defective.
Indeed, the law in the Seventh Circuit is against Petitioner's Double Jeopardy claim. Supervised release is part of Petitioner's original sentence. When, as here, Petitioner violated the terms of his supervised release by illegally re-entering the United States, it is Petitioner's breach of trust in failing to abide by the terms and conditions of his supervised release that is sanctioned. United States v. Wyatt, 102 F.3d 241, 245 (7th Cir. 1996); see also United States v. Huusko, 275 F.3d 600, 603 (7th Cir. 2001). A revocation of supervised release only modifies Petitioner's original sentence; it is not punishment for the conduct that caused the ...