The opinion of the court was delivered by: Herndon, Chief Judge:
This case is before the Court on petitioner's writ of habeas corpus. Petitioner, an inmate in the Federal Correctional Institution (FCI) in Schuylkill, Pennsylvania, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the sentence that was imposed on November 17, 2003, after his guilty plea in this Court (See United States v. Veach, Case No. 02-cr-40074-GPM).
As an initial matter, a word about the named respondents is in order. Respondent Deboo is the warden of FCI-Gilmer in Glenville, West Virginia, where petitioner was confined at the time this action was filed. Petitioner has since been transferred to FCI-Schuylkill and his new custodian is respondent Sniezek. Accordingly, respondent Deboo, the former custodian, shall be dismissed from this action. See 28 U.S.C. § 2242.
Petitioner pled guilty to one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Based on this Court's finding that petitioner was a career offender under the United States Sentencing Guidelines (U.S.S.G.) § 4B1.1(a), his offense level was enhanced from 25 to 32, and he was given the maximum available sentence of 188 months. This Court concluded that petitioner had three prior convictions for "crimes of violence." Two of these prior offenses were in Illinois, for aggravated battery under 720 Illinois Compiled Statutes 5/12-4(b)(8).
Petitioner appealed from his conviction, but that appeal was dismissed because of the appeal waiver contained in his plea agreement. United States v. Veach, No. 03-4203 (7th Cir. May 11, 2005). Petitioner then filed a 28 U.S.C. § 2255 motion on July 18, 2006, alleging ineffective assistance of counsel. This Court denied the § 2255 motion on July 18, 2008 (Doc. 11 in Veach v. United States, Case No. 06-cv-565-GPM).
In April 2010, petitioner submitted a pro se motion for a certificate of appealability to the United States Court of Appeals, Seventh Circuit. In it, he argued that under the recent decisions in Begay v. United States, 553 U.S. 137 (2008), Chambers v. United States, 555 U.S. 122 (2009), and United States v. Evans, 576 F.3d 766 (7th Cir. 2009), the two Illinois offenses that were used to enhance his sentence no longer met the definition of "violent felonies." The Seventh Circuit construed petitioner's motion as a notice of appeal and directed it to be filed as such in this Court (see Doc. 13 in Case No. 06-565-GPM).
On November 19, 2010, the Seventh Circuit dismissed the appeal for lack of jurisdiction, finding it to be an untimely appeal from the denial of petitioner's § 2255 motion. Notably, the Seventh Circuit indicated that petitioner's argument might be cognizable in a § 2241 petition, because that is "the proper avenue for relief when § 2255 is 'inadequate or ineffective to test the legality of his detention.'" Veach v. United States, No. 10-2129 (7th Cir. Nov. 19, 2010) (quoting 28 U.S.C. § 2255(e)) (See also Doc. 26-1 in Case No. 06-cv-565-GPM). Following the Seventh Circuit's suggestion, petitioner filed the instant action on June 22, 2011.
Petitioner argues that the § 2255 procedure is inadequate to test the legality of his detention, because this Court was unwilling to reach his constitutional claims due to the appellate waiver. However, the fact that petitioner did not succeed in obtaining relief through his § 2255 motion does not demonstrate a structural inadequacy in the § 2255 procedure itself. Nevertheless, for the reasons below, the Court finds that petitioner's claim is one of the few cases where § 2255 does not provide an adequate remedy, and meaningful review is available only through a petition filed under § 2241. Therefore, the respondent shall be directed to answer the petition. Nothing in this order, however, should be construed as an opinion on the merits of petitioner's claim.
Petitioner bases his claim that his two Illinois aggravated battery convictions should no longer be considered "crimes of violence" on a Supreme Court ruling announced over four years after petitioner was sentenced. See Begay v. United States, 553 U.S. 137 (2008) (holding that the felony offense of driving under the influence of alcohol is not a violent felony within the meaning of 18 U.S.C. § 924(e), the Armed Career Criminal Act). Petitioner asserts that in light of Begay and subsequent cases applying the analysis of that opinion, his Illinois convictions for aggravated battery do not contain the requisite elements to qualify as crimes of violence under the U.S.S.G. and therefore should not have been used to enhance his sentence. He urges this Court to grant relief because his 188 month "career offender" enhanced sentence is constitutionally impermissible under the rule announced in Begay. Further, he notes that if his sentence were reduced commensurate to his non-enhanced offense level of 25 and criminal history category of III, he should be entitled to immediate release, having already served the maximum allowable sentence for that offense level (Doc. 1-1, p. 11).
As a general rule, 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 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. See also Waletski v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) ("[A] prisoner who challenges his federal conviction or sentence cannot use [§ 2241] at all but instead must proceed under 28 U.S.C. § 2255.").
An inmate who has had the opportunity for one round of review under § 2255 may only file a second or successive § 2255 motion by first obtaining leave by certification of the appropriate court of appeals that his motion meets one of the listed criteria. 28 U.S.C. § 2255(h). This limitation alone does not render § 2255 an inadequate remedy. 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).
In Davenport, the Seventh Circuit considered the meaning of "inadequacy" for purposes of § 2255. The court 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 Circuit later clarified this standard, stating that actual innocence is established when a petitioner can "admit everything charged in [the] ...