IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
June 30, 2011
JOHN RODNEY VEACH PETITIONER/DEFENDANT,
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.
The opinion of the court was delivered by: Murphy, District Judge:
Petitioner John Rodney Veach pleaded guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 and was sentenced to 188 months imprisonment as a career offender under the sentencing guidelines. The United States Court of Appeals for the Seventh Circuit dismissed Veach's direct appeal because his plea agreement contained an appeal waiver. Veach then filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence based on a claim of ineffective assistance of counsel during plea negotiations, which this Court denied after finding that Veach entered into the plea agreement knowingly and voluntarily.
Veach filed an untimely appeal of the denial of his § 2255 motion, in which he attempted to challenge this Court's career offender determination. In dismissing the appeal as untimely, the Court of Appeals noted that the rule of Begay v. United States, 553 U.S. 137 (2008), is retroactive on collateral review and that "Veach's argument regarding his status as a career offender therefore might be appropriately brought in a petition under 28 U.S.C. § 2241, which is the proper avenue for relief when § 2255 is 'inadequate or ineffective to test the legality of his detention'" (Doc. 26, quoting 28 U.S.C. § 2255(e)). The Court of Appeals' Mandate was issued on January 11, 2011. On June 22, 2011, Veach, through counsel, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Counsel erroneously filed the petition in the closed § 2255 civil action rather than filing a new action under § 2241.
Accordingly, the Court STRIKES the petition (Doc. 28) from the docket in civil case number 06-565-GPM and DIRECTS the Clerk of Court to open a new civil case and to file Veach's habeas petition therein. Veach's habeas petition is deemed filed on June 22, 2011.
IT IS SO ORDERED.
G. PATRICK MURPHY United States District Judge
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