CODY F. ELLERMAN, Petitioner,
J. S. WALTON, Respondent.
MEMORANDUM and ORDER
CLIFFORD J. PROUD, Magistrate Judge.
Cody F. Ellerman filed a petition for writ of habeas corpus under 28 U.S.C. §2241, (Doc. 1). In 2004, he pleaded guilty to a charge of being a felon in possession of a firearm in the Western District of Louisiana. Because he had three prior state convictions for "serious drug offense[s]", he was sentenced as an armed career criminal (ACC) under 18 U.S.C. §924(e). He was sentenced to 262 months imprisonment.
Ellerman argues that he should not have been sentenced under §924(e) because his prior state drug convictions did not have maximum prison terms of ten years and therefore do not qualify as serious drug offenses under §924(e)(2)(A)(ii). Respondent argues that Ellerman is precluded from bringing a §2241 petition.
Relevant Facts and Procedural History
Ellerman's prior drug convictions occurred in the State of Kansas in 1999 and 2000. He was convicted in two separate cases of a total of four counts of sale of marijuana, a level 3 felony. Doc. 1, Ex. A.
He was sentenced on his federal charge on August 5, 2004. The transcript of the sentencing hearing is at Doc. 19, Ex. E. The Kansas drug convictions were the predicate for application of §924(e). His attorney did not object to the ACC enhancement on the basis that the Kansas drug convictions did not qualify as serious drug offenses.
Petitioner did not file a direct appeal. In August, 2006, he filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. §2255 in the Western District of Louisiana. The District Court denied the motion as untimely. Doc. 1, Ex. B. Ellerman attempted to appeal that decision, but his appeal was dismissed because his notice of appeal was untimely. Doc. 19, Ex. G & H.
Ellerman then filed four motions in the Western District of Louisiana, which the District Court construed as successive §2255 motions. The District Court transferred the motions to the Fifth Circuit Court of Appeals as Ellerman had not been granted leave to file a second or successive §2255 petition. Doc. 1, Ex. C. The Fifth Circuit denied him leave to file a second or successive §2255 petition. Doc. 19, Ex. K.
Lastly, Ellerman has filed a previous §2241 petition in this District in which he raised the same claim as he raises here. See, Ellerman v. Hollingsworth, Case No. 10-cv-860-GPM. That petition was dismissed with prejudice on December 14, 2010, because Ellerman did not come within the savings clause of §2255(e) and was therefore precluded from challenging his sentence in a §2241 petition. Case No. 10-cv-860-GPM, Doc. 3. Ellerman did not appeal.
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). However, the statute generally 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 new 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 ...