United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon, UNITED STATES DISTRICT JUDGE
currently incarcerated in the United States Penitentiary
Marion, brings this habeas corpus action pursuant to 28
U.S.C. § 2241 to challenge the execution of his
sentence. United States v. Andre Graham, No.
07-cr-40048-JAR-1 (Kan. 2009) (“criminal case”).
The Petition was filed on March 13, 2017. (Doc. 1).
pleaded guilty to 2 counts, including 1 count of possession
with intent to distribute 30.33 grams of cocaine
hydrochloride, a Schedule II substance, in violation of 21
U.S.C. § 841(a)(1), and 1 count of possession of a
firearm during a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A). (Doc. 1, p. 2). Petitioner was
sentenced to 84 months on the possession with intent to
distribute charge and 60 months on the possession of a
firearm charge, to be served consecutively, plus 2 concurrent
terms of supervised release. Id. Previously,
Petitioner filed a Motion pursuant to 28 U.S.C. § 2255,
arguing that his attorney was ineffective for failing to
request a competency evaluation and for failing to challenge
enhancements at sentencing. (Doc. 1, p. 3); Graham v.
United States, 10-cv-4022-JAR (D. Kan. Jan. 31, 2011).
That Petition was ultimately denied. Id. The Court
of Appeals denied Petitioner a certificate of appealability.
Id. The Supreme Court denied the Petition for Writ
of Certiorari on April 16, 2012. (Doc. 1, p. 3).
now brings this habeas corpus action pursuant to 28 U.S.C.
§ 2241 and argues that his sentence was improperly
enhanced under the sentencing guidelines. (Doc. 1,
p. 4). He seeks resentencing. Id.
of the Rules Governing § 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
plea agreement contained a waiver of his right to appeal.
(Doc. 1, p. 4). His pre-sentencing report, which contained
errors in his criminal history that caused him to have a
higher criminal level than he otherwise would have, was
issued after he signed the plea agreement. Id.
Specifically, Petitioner was assigned a category 5 criminal
history, but he alleges that his applicable criminal history
was calculated in such a matter to include a 1987 conviction
that was discharged on June 6, 1990, more than 15 years prior
to his underlying crime in violation of U.S.S.G. 4A1.2(e).
(Doc. 1, p. 5). The PSR writer also erroneously concluded
that Petitioner was on probation at the time of the relevant
offense, when in fact he had completed his probation more
than 2 years before the conduct at issue. (Doc. 1, p. 6).
Petitioner alleges that had he been sentenced correctly, his
guideline range would have been between 57 and 71 months on
the drug conviction. (Doc. 1, p. 4). Instead, Petitioner was
sentenced to 84 months on the drug conviction. Id.
When Petitioner filed his § 2255 Petition, it was
rejected because of the appeal waiver Petitioner signed.
Petition must be dismissed because Petitioner cannot use
§ 2241 to challenge his current sentence. To
collaterally attack a sentence, federal prisoners must
ordinarily file a petition under § 2255. Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013). But a
federal prisoner “may petition under section 2241
instead if his section 2255 remedy is ‘inadequate or
ineffective to test the legality of his
detention.'” Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012) (quoting 28 U.S.C. § 2255(e)).
“‘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) (quoting Taylor v. Gilkey,
314 F.3d 832, 835 (7th Cir. 2002)). Stated differently,
“[a] federal prisoner should be permitted to seek
habeas corpus only if he had no reasonable opportunity to
obtain earlier judicial correction of a fundamental defect in
his conviction or sentence because the law changed after his
first 2255 motion.” In re Davenport, 147 F.3d
605, 611 (7th Cir. 1998).
order for the so-called “savings clause” to
apply, three conditions must be satisfied. First, the
prisoner must show that he relies on a
“statutory-interpretation case, ” rather than a
“constitutional case.” Rios, 696 F.3d at
640. Second, the prisoner must show that he relies on a
retroactive decision that he could not have invoked in his
first § 2255 motion. Id. “The third
condition is that [the] sentence enhancement . . . have been
a grave enough error to be deemed a miscarriage of justice
corrigible therefore in a habeas corpus proceeding.”
Id.; see also Davenport, 147 F.3d at 611 (a prisoner
must show “a fundamental defect in his conviction or
Petitioner has not pointed to any new case that he relies on
or explicitly alleged that he did not have a reasonable
opportunity to present his argument in a § 2255
petition. Although he does refer to some Seventh Circuit case
law, none of the cases he points to is a Supreme Court case
or a new interpretation that was previously unavailable. He
has also failed to allege that any of the cases were applied
retroactively. Petitioner thus fails to meet the first 2
criteria for invoking the savings clause. Petitioner is also
explicit that he believes that relief under § 2255 is
unavailable because the sentencing court concluded that
Petitioner had waived his right to file a § 2255
petition. But that is not grounds for relief, nor
does it trigger the savings clause. Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015)
(“[S]omething more than a lack of success with a
section 2255 motion must exist before the savings clause is
satisfied.”). As Petitioner has not pointed to a
retroactive change in law that makes him actually innocent of
the crime he was sentenced for, he has failed to trigger the
savings clause of § 2255(e). This case shall be
DISMISSED with prejudice.
HEREBY ORDERED that the Petition is summarily DISMISSED on
the merits with prejudice.
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 ...