United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. HERNDON, District Judge
Duwayne Taylor is in the custody of the Bureau of Prisons,
housed at Greenville Federal Correctional Institution in
Greenville, Illinois. Petitioner pleaded guilty to being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), and was sentenced in 2008 to a 180-month
term of imprisonment. United States v. Taylor, No.
08-cr-20059-MPM-DGB (CD. Ill. 2008). Petitioner was sentenced
as an Armed Career Criminal under 18 U.S.C. § 924(e)
(“ACCA”), based on three prior Illinois
convictions, including robbery and aggravated discharge of a
firearm. Specifically, petitioner alleges that he was charged
under the ACCA based on a robbery conviction pursuant to 720
ILCS 5/18-1(a) & b) in case No. 99-CF-35; and a
conviction for aggravated discharge of firearm in violation
of 720 ILCS 5/24-1.2(a)(2) in case no. 99-CF-1106.
petitioner brought a habeas corpus action pursuant to 28
U.S.C. § 2255 in case No. 10-cv-2109-MPM-DGB (CD. Ill.
2010). The court ultimately dismissed that case because
Petitioner's plea agreement waived his right to file a
§ 2255 Motion. (Doc. 11, Case No. 10-2109). Petitioner
alleges that he has asked the Seventh Circuit for leave to
file a successive § 2255 petition, and was denied. (Doc.
1, p. 2). He further alleges that this case falls within the
savings clause because he relies on recent decisions in
Johnson v. United States, 135 S.Ct. 2551 (2015) and
Mathias v. United States, 136 S.Ct. 2243 (2016) that
were unavailable to him during his initial § 2255
Petition, and because that remedy is no longer available to
of the Rules Governing Section 2254 cases in United States
District Courts provides that upon preliminary consideration
by the district court judge, “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to
notify the petitioner.” Rule 1(b) of those Rules gives
this Court the authority to apply the rules to other habeas
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). Federal
prisoners may utilize § 2241, however, to challenge the
legality of a conviction or sentence in cases pursuant to the
“savings clause” of § 2255(e). The savings
clause allows a petitioner to bring a claim under §
2241, where he can show that a remedy under § 2255 is
inadequate or ineffective to test the legality of his
detention. Id. See also United States v.
Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
Court of Appeals for the Seventh Circuit has held that §
2255 is only inadequate or ineffective when three
requirements are satisfied: 1) the petitioner relies on a new
case of statutory interpretation rather than a constitutional
decision; 2) the case was decided after his first § 2255
motion but is retroactive; and 3) the alleged error results
in a miscarriage of justice. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012). “'Inadequate or
ineffective' means that ‘a legal theory that could
not have been presented under § 2255 establishes the
petitioner's actual innocence.'' Hill v.
Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (citing
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir.
2002)); In re Davenport, 147 F.3d 605, 608 (7th Cir.
petitioner may utilize the “savings clause” of
§ 2255(e) depends on whether Johnson and
Mathis are new statutory interpretations. The
Seventh Circuit has been clear that Johnson is a
statutory interpretation case that falls under the savings
clause. Price v. United States, 795 F.3d 731, 733
(7th Cir. 2015). Mathis, although clearly a
statutory interpretation case, Dawkins v. United
States, 829 F.3d 549, 550 (7th Cir. 2016), still
presents a question about whether it is retroactive, although
Dawkins suggests that it may be. 829 F.3d at 551
(“An independent claim based on Mathis must be
brought, if at all, in a petition under 28 U.S.C. §
2241.”) The government is therefore directed to submit
a response addressing this issue. Furthermore, there is
insufficient information before the Court upon which to
conclude that dismissal at this preliminary stage pursuant to
Rule 4 is appropriate; although Petitioner has summarized the
procedural history of his case, the records themselves are
not before the Court. Therefore respondent Werlich will be
required to respond or otherwise plead.
HEREBY ORDERED that respondent shall answer the petition or
otherwise plead within thirty days of the date this order is
entered. This preliminary order to respond does not, of
course, preclude the State from making whatever waiver,
exhaustion, or timeliness argument it may wish to present.
Service upon the United States Attorney for the Southern
District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois shall constitute sufficient service.
FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford
J. Proud for further pre-trial proceedings.
FURTHER ORDERED that this entire matter be REFERRED to United
States Magistrate Judge Clifford J. Proud for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), should all the parties consent to such a
is ADVISED of his continuing obligation to keep the Clerk
(and each opposing party) informed of any change in his
whereabouts during the pendency of this action. This
notification shall be done in writing and not later ...