United States District Court, S.D. Illinois
DAMMARO PERKINS, No. 07580-025, Petitioner,
MEMORANDUM AND ORDER
R. HERNDON JUDGE.
currently incarcerated in Satellite Camp at the USP-Marion,
brings this habeas corpus action pursuant to 28 U.S.C. §
2241 to challenge the constitutionality of his confinement.
He is serving a 180-month sentence for possession with intent to
distribute crack cocaine and marijuana, possession of a
firearm by a convicted felon, and possession of a firearm in
furtherance of a drug-trafficking crime. United States v.
Perkins, Case No. 05-cr-30137-DRH (S.D. Ill.);
aff'd, United States v. Perkins, 548
F.3d 510 (7th Cir. 2008); see also Perkins v. United
States, Case No. 10-cv-104-DRH (28 U.S.C. § 2255
proceeding) (Doc. 16). The sentence was imposed on September
28, 2007, following a jury trial. (Doc. 74 in criminal case).
present action, Petitioner challenges only his
“possession of a firearm in furtherance”
conviction under 18 U.S.C. § 924(c)(1)(A). He contends
that this conviction is invalid under Bailey v. United
States, 457 U.S. 137, 143 (1995), and that he is
therefore actually innocent of the offense. In his one-page
pleading, Petitioner does not describe any of the facts
relating to his conviction, but argues that “mere
possession” of a weapon, without a showing that the
weapon was actually used in furtherance of the crime, is
insufficient to sustain a conviction under § 924(c). He
cites cases noting that a court must consider factors
including whether the gun was loaded, the type of weapon, the
legality of its possession, the type of drug activity
conducted, and the time and circumstances under which the gun
was found. (Doc. 1, p. 1).
case is now before the Court for a preliminary review of the
petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in United States District Courts. Rule 4 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 corpus
cases, such as this action under 28 U.S.C. § 2241. After
carefully reviewing the petition, the Court concludes that
this action is subject to dismissal.
general matter, “28 U.S.C. § 2241 and 28 U.S.C.
§ 2255 provide federal prisoners with distinct forms of
collateral relief. Section 2255 applies to challenges to the
validity of convictions and sentences, whereas § 2241
applies to challenges to the fact or duration of
confinement.” Hill v. Werlinger, 695 F.3d 644,
645 (7th Cir. 2012) (citing Walker v. O'Brien,
216 F.3d 626, 629 (7th Cir. 2000). See also Brown v.
Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998).
Because Petitioner herein is attacking the validity of his
sentence, a § 2255 motion is the proper avenue for
relief. In 2010, Petitioner in fact brought a motion pursuant
to § 2255, but did not succeed in that challenge.
Perkins v. United States, Case No. 10-cv-104-DRH.
very limited circumstances, a prisoner may employ § 2241
to challenge his federal conviction or sentence. 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 Hill, 695 F.3d at 648
(“‘Inadequate or ineffective' means that
‘a legal theory that could not have been presented
under § 2255 establishes the petitioner's actual
innocence.'”) (citing Taylor v. Gilkey,
314 F.3d 832, 835 (7th Cir. 2002). See also United States
v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The
fact that petitioner may be barred from bringing a
second/successive § 2255 petition is not, in itself,
sufficient to render it 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). Instead, a petitioner under § 2241
must demonstrate the inability of a § 2255 motion to
cure the defect in the conviction. “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.” Davenport, 147 F.3d at
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 miscarriage of
justice. Brown v. Caraway, 719 F.3d 583, 586 (7th
Cir. 2013). See also Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012).
fails to meet these conditions. The cases he invokes to
support his argument were all decided prior to his 2007
conviction: Bailey v. United States, 457 U.S. 137,
143 (1995); United States v. Combs, 369 F.3d 925
(6th Cir. 2004); United States v. Mackey, 265 F.3d
457 (6th Cir. 2001); and United States v.
Feliz-Cordero, 859 F.2d 250 (2d Cir. 1988). Thus, none
of these cases qualifies as a “new” case that was
unavailable to Petitioner in his earlier challenges to his
conviction. Not only could Petitioner have raised any of
these cases in his § 2255 motion, he could have brought
an argument based on these authorities during his jury trial
and on his direct appeal. Finally, Petitioner puts forth no
argument or authority to demonstrate a “fundamental
defect” in his conviction or sentence. For these
reasons, the § 2241 petition is subject to dismissal.
summarize, Petitioner has not demonstrated that § 2255
is an inadequate remedy for his current claims, and
consistent with In re Davenport, he cannot raise
these claims through a § 2241 petition.
Davenport, 147 F.3d 605 (7th Cir. 1998).
Accordingly, the petition is summarily DISMISSED with
Petitioner wishes to appeal this dismissal, he may file a
notice of appeal with this court within thirty days of the
entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
leave to appeal in forma pauperis should set forth
the issues Petitioner plans to present on appeal.
See Fed. R. App. P. 24(a)(1)(C). If Petitioner does
choose to appeal and is allowed to proceed IFP, he will be
liable for a portion of the $505.00 appellate filing fee (the
amount to be determined based on his prison trust fund
account records for the past six months) irrespective of the
outcome of the appeal. See Fed. R. App. P. 3(e); 28
U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547
F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza,
181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper
and timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline. A Rule
59(e) motion must be filed no more than twenty-eight (28)
days after the entry of the judgment, and this 28-day
deadline cannot be extended.
not necessary for Petitioner to obtain a certificate of
appealability from this disposition of his § 2241
petition. Walker v. ...