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Frankie Alicea v. Ricardo Rios

November 20, 2012

FRANKIE ALICEA, PETITIONER,
v.
RICARDO RIOS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

1:11-cv-01359-JBM # 8 Page 1 of 7 E-FILED

Wednesday, 21 November, 2012 09:11:24 AM

Clerk, U.S. District Court, ILCD

ORDER & OPINION

This matter is before the Court on Petitioner Frankie Alicea's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1). Respondent has filed a Response (Doc. 6) and Petitioner filed a Reply (Doc. 7). For the reasons stated below, Petitioner's Petition is dismissed.

BACKGROUND

In 1994, Petitioner was convicted by a jury on six separate counts, including one count of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g), after a trial in the Northern District of Illinois. (Doc. 1 at 1). His sentence was enhanced pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), based on the finding that Petitioner had at least three qualifying prior convictions. (Doc. 1 at 2). He was sentenced to 322 months' imprisonment. (Doc. 1 at 2). This sentence was affirmed on direct appeal and Petitioner's later motion to vacate pursuant to 28 U.S.C. § 2255 was denied. (Doc. 1 at 2).

Petitioner makes two arguments for why his sentence is illegal. First, he argues that under the recent Seventh Circuit decision in Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009), the prior offenses that served as the basis for his ACCA sentence enhancement should not have counted as ACCA predicate offenses. (Doc. 1 at 2-3). He argues that the notice he allegedly received from the Illinois Department of Corrections that many of his civil rights were restored following his state convictions, similar to the notice at issue in Buchmeier, failed to notify him of any firearms restrictions that remained, and that therefore 18 U.S.C. § 921(a)(20)*fn1 prohibited those convictions from being used to enhance his sentence. (See Doc. 1 at 3-5). Second, he argues that his prior drug offense convictions should not have counted as ACCA predicate offenses for the additional reason that the amount of heroin that resulted in the convictions was too small for it to be considered a serious felony. (Doc. 1 at 5-6).

Regarding the propriety of relief under § 2241, Petitioner argues that new precedent allows federal prisoners to seek habeas corpus review of improper ACCA enhancements. (Doc. 1 at 2). He claims that he is "actually innocent of being an Armed Career Criminal," and is entitled to habeas corpus relief.

DISCUSSION

A federal prisoner whose claim falls within the scope of a 28 U.S.C. § 2255 motion may only file for a writ of habeas corpus under 28 U.S.C. § 2241 in very limited circumstances. § 2255(e). The specific provision reads:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section [§ 2255], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

Id. This has the effect of barring most habeas corpus petitions filed by federal prisoners absent a showing that § 2255 is inadequate. Id.; see also Collins v. Holinka, 510 F.3d 666, 667 (7th Cir. 2007).

As a federal prisoner challenging the validity of his sentence, Petitioner would ordinarily be required to bring his claim as a § 2255 motion. Thus, the question is whether a § 2255 motion would be "inadequate or ineffective to test the legality of [Petitioner's] detention." 28 U.S.C. § 2255(e). The mere fact that Petitioner's claim would be a second or successive § 2255 motion does not render § 2255 inadequate or ineffective. See In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998). The fact that a previous § 2255 motion ...


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