MEMORANDUM and ORDER
CLIFFORD J. PROUD, Magistrate Judge.
Kenneth James Price filed a petition for writ of habeas corpus under 28 U.S.C. §2241. (Doc. 1). A jury in the Northern District of Illinois convicted him of bank robbery, use of a firearm in a crime of violence and being a felon in possession of a firearm. In June, 2002, he was sentenced to 262 months imprisonment on the bank robbery charge and 120 months imprisonment on the felon in possession of a firearm charge, to be served concurrently. In addition, he was sentenced to seven years on the use of a firearm charge, pursuant to 18 U.S.C. 924(c)(1)(A)(ii), to be served consecutively.
Relying on Alleyne v. United States , 133 S.Ct. 2151 (2013), Price argues that the seven year sentence was improper because he was sentenced under §924(c)(1)(A)(ii), but the jury did not find him guilty of brandishing a firearm. Respondent argues that the petition must be dismissed because Alleyne does not apply retroactively.
On direct appeal, the Seventh Circuit Court of Appeals summarized the facts giving rise to Price's convictions as follows:
You just know there's going to be a whole lot of trouble when a man, wearing a ski mask over his face, enters a bank on a hot August afternoon. And there was plenty of trouble back in August 2001 when a man behind a ski mask pointed a gun at Siamphay Mounivong, a teller at the Elgin State Bank in Elgin, Illinois, and said, "I need money." Mounivong opened her teller drawer and complied with what seemed pretty clearly to be an order. The robber was not satisfied and said, "I need more money, " a request with which Mounivong also wisely complied, giving the robber a total of $8, 300, $500 of which was bait money.
U.S. v. Price , 328 F.3d 958, 959 (7th Cir. 2003).
Price filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. §2255 in the Northern District of Illinois. Among other claims, he argued that his sentence on the use of firearm conviction was improper because he was sentenced to seven years for brandishing a firearm during the robbery, but the indictment only charged him with using and carrying. Doc. 1, Ex. A.
There is no indication in the record that Price sought leave to file a second or successive §2255 motion pursuant to 28 U.S.C. §2255(h).
Applicable Legal Standards
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not be used to raise claims of legal error in conviction or sentencing, but are limited to challenges regarding the execution of a sentence. See, Valona v. United States , 138 F.3d 693, 694 (7th Cir.1998).
A federally convicted person may challenge his conviction and sentence by bringing a motion pursuant to 28 U.S.C. §2255 in the court which sentenced him. Indeed, a §2255 motion is ordinarily the "exclusive means for a federal prisoner to attack his conviction." Kramer v. Olson , 347 F.3d 214, 217 (7th Cir. 2003). The statute limits a prisoner to one challenge of his conviction and sentence under §2255. A prisoner may not file a "second or successive" motion unless a panel of the appropriate court of appeals certifies that such motion contains either 1) newly discovered evidence "sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense, " or 2) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h).
It is possible, under very limited circumstances, for a prisoner to challenge his federal conviction or sentence under §2241. 28 U.S.C. §2255(e) contains a "savings clause" which authorizes a federal prisoner to file a §2241 petition where the remedy under §2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). See, United States v. Prevatte , 300 F.3d 792, 798-99 (7th Cir.2002). "A procedure for postconviction relief can be fairly 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." In re Davenport , 147 F.3d 605, 611 (7th Cir. 1998)
The Seventh Circuit has explained that, in order to fit within the savings clause following Davenport, a petitioner must meet three conditions. First, he must show that he relies on a statutory interpretation case rather than a constitutional case. Secondly, he must show that he relies on a decision that he could not have invoked in his first §2255 motion and that case must apply retroactively. Lastly, he must demonstrate that there has been a "fundamental defect" in his conviction or sentence that is grave enough to be deemed a ...