United States District Court, S.D. Illinois
JERRY W. JENKINS, Petitioner,
B. TRUE, WARDEN, Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge
Jerry W. Jenkins filed a petition for writ of habeas corpus
under 28 U.S.C. §2241, Doc. 1. As construed on
preliminary review, the petition challenges his sentence as
an Armed Career Criminal under 18 U.S.C. §924(c) because
he did not have three prior convictions for violent felonies.
Facts and Procedural History
was convicted in 2008 of one count of being a felon in
possession of ammunition and one count of being a felon in
possession of a firearm in the Western District of Missouri,
United States v. Jenkins, Case No. 07-cr-00385-DW.
The sentencing judge determined that he qualified as a Career
Criminal based on prior convictions for Missouri second
degree robbery, Missouri forcible sodomy, Missouri attempted
robbery/armed criminal action (counted as one criminal
episode), and California second degree robbery. Transcript of
Sentencing Hearing, Doc. 15, Ex. 1, pp. 4-10. He was sentenced
to 327 months imprisonment on each count, to run
concurrently. Ex. 1, p. 16.
direct appeal, Jenkins argued that the district court erred
by: (1) admitting witness Michelle Gordon's testimony
that he possessed a firearm before the date of the charged
offenses; (2) admitting evidence of several previous felony
convictions; and (3) imposing concurrent 327 month sentences.
The Eighth Circuit affirmed both the conviction and sentence.
United States v. Jenkins, 355 Fed.Appx. 983 (8th
filed a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255 in the Western District of
Missouri in February 2011. Jenkins v. United States,
Case No. 11cv-215-DW. He argued that the district court erred
in (1) admitting into evidence the name and nature of his
prior felony convictions; (2) allowing Michelle Carson to
testify as to certain matters; and (3) not allowing Jenkins
to introduce collateral evidence to impeach the testimony of
Michelle Gordon. He also alleged ineffective assistance of
counsel. In relevant part, he argued that counsel failed to
argue that his prior convictions were not violent felonies
for purposes of the Armed Career Criminal Act. See,
Jenkins, Case No. 11-cv-215-DW, Doc. 2, pp. 23-24.
The district court denied the motion and denied a certificate
of appealability. The Eighth Circuit also denied a
certificate of appealability. Jenkins v. United
States, Case No. 11-3846 (8th Cir. April 20, 2012).
2016, the Eighth Circuit granted Jenkins permission to file a
successive §2255 motion to assert a claim under
Johnson v. United States, 135 S.Ct. 2551 (2015).
Through counsel, Jenkins filed a successive motion, which was
denied. The district court also denied a certificate of
appealability. Jenkins v. United States, Case No.
16-cv-674-DW, Doc. 12. Jenkins then filed a motion for
issuance of a certificate of appealability. The
government's response to that motion is due on April 4,
2017. Jenkins, Case No. 16-cv-674-DW, Docs. 14 &
for Habeas Relief
petition set forth 18 grounds for relief. On preliminary
review, this Court determined that all but one were claims
that could not be raised in a §2241 petition because
they could have been raised on direct appeal or in a
§2255 motion. Only ground 17, alleging that
petitioner's prior convictions did not qualify as violent
felonies under the Armed Career Criminal Act, was potentially
cognizable. Giving the pro se petition a broad reading, this
Court determined that petitioner was advancing a claim
pursuant to Descamps v. United States, 133 S.Ct.
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).
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. 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).
prisoner is generally limited to only 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).
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 ...