United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY McDADE UNITED STATES SENIOR DISTRICT JUDGE.
matter before the Court is Petitioner Demetrius Moore's
Amended Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241. For the following reasons,
Petitioner's Amended Petition (Doc. 5) is denied.
January 14, 2014, Petitioner pled guilty to one count of bank
robbery by force or violence, in violation of 18 U.S.C.
§§ 2113(a) and 2113(d), and one count of knowingly
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
See Plea Agreement, United States v. Moore,
No. 2:13-cr-00041-LA-1 (E.D. Wis. Jan. 14, 2014). In doing
so, Petitioner pled guilty to taking approximately $2, 400
from the presence of a teller by force, violence, and
intimidation at U.S. Bank in Butler, Wisconsin. Id.
On April 23, 2014, Judge Adelman sentenced Petitioner to a
total of 102 months incarceration, followed by five years of
supervised release. See J., United States v.
Moore, No. 2:13-cr-00041-LA-1 (E.D. Wis. Apr. 24, 2014).
On June 13, 2016, Petitioner filed a motion to vacate, set
aside or correct a sentence pursuant to 28 U.S.C. §
2255. See Moore v. United States, No.
2:16-cv-00719-LA (E.D. Wis. Jun. 13, 2016). On June 23, 2016,
Petitioner's § 2255 motion was denied. See
J., Moore v. United States, No. 2:16-cv-00719-LA
(E.D. Wis. Jun. 23, 2016).
October 31, 2016, Petitioner filed an “Emergency
Petition for Constitutional Writ of Habeas Corpus ad
Subjiciendum.” (Doc. 1). Because it was unclear whether
Petitioner was seeking to file a § 2255 motion or a
§ 2241 petition, the Court ordered Petitioner to file an
Amended Complaint identifying which way Petitioner wanted to
proceed. (Doc. 2). On January 9, 2017, Petitioner filed this
Amended Petition, indicating that he wished to proceed as a
§ 2241 petition. (Doc. 5). At the time Petitioner filed,
he was incarcerated at the federal correctional institute in
Pekin, Illinois. (Doc. 9). Petitioner was subsequently
transferred to the federal correctional institute in Yazoo
City, Mississippi. (Doc. 8). Because of the change in the
location of Petitioner's custody, the Court applied the
precedent of the United States Court of Appeals for the
Seventh Circuit and transferred the case to the Southern
District of Mississippi. (Doc. 9). Then, the Southern
District of Mississippi transferred the case back to the
Central District of Illinois, because it was bound by Fifth
Circuit precedent, which holds that jurisdiction over a
§ 2241 habeas petition belongs to the court of custody
when the petition is originally filed. (Doc. 15). The
Southern District of Mississippi also consulted with parties,
both of which consented and preferred that the case be
transferred back to the Central District of Illinois. (Doc.
the case was transferred back to the Central District of
Illinois. (Doc. 15). Because the case had originally been
misfiled in the Springfield Division of the Central District,
Judge Myerscough transferred the case to the Peoria Division,
which is the judicial district in which the federal
correctional institution in Pekin lies. See July 25,
2017 Text Order.
Amended Complaint argues that the federal government did not
have jurisdiction over the land where he committed his crime
because the Wisconsin Governor did not cede jurisdiction.
Petitioner argues that 40 U.S.C. § 3112 and Adams v.
United States, 319 U.S. 312 (1943), require the state
governor to cede jurisdiction over the state in order for
there to be federal criminal jurisdiction. (Doc. 5 at 2-3).
se pleadings are given liberal construction and are held
to a less stringent standard than formal pleadings drafted by
attorneys. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); Ambrose v. Roeckeman, 749 F.3d
615, 618 (7th Cir. 2014). However, a court must still decide
whether a petition adequately presents the legal and factual
basis for a claim. Id.
Court, in its discretion, applies the Rules Governing Section
2254 Cases in the United States District Courts to all cases
that purport to be brought under Chapter 153 of Title 28 of
the United States Code that are not explicitly brought under
28 U.S.C. §§ 2254 and 2255. See Rules
Governing Section 2254 Cases in the United States District
Courts, R 1(b); see also Poe v. United States, 468
F.3d 473, 477 n. 6 (7th Cir. 2006); Hudson v.
Helman, 948 F.Supp. 810, 811 (C.D. Ill. 1996) (holding
Rule 4 takes precedence over 28 U.S.C. § 2243's
deadlines and gives court discretion to set deadlines). This
includes Rule 4, which requires that the Court
“promptly examine” the Petition, and dismiss it
if it “plainly appears . . . that the petitioner is not
entitled to relief.” Pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts, the Court has examined the Petition and determined
Petitioner is not entitled to habeas corpus relief.
federal prisoners, like Petitioner, who wish to collaterally
attack their convictions or sentences ordinarily must do so
under 28 U.S.C. § 2255. Brown v. Rios, 696 F.3d
638, 640 (7th Cir. 2012). They may petition under 28 U.S.C.
§ 2241 only in the rare circumstance in which the remedy
provided under § 2255 “is inadequate or
ineffective to test the legality of his detention.”
See 28 U.S.C. § 2255(e) (which is often
referred to as “the Savings Clause”). The mere
fact that Petitioner's claim would be a second or
successive § 2255 motion does not render § 2255
inadequate or ineffective. See In re Davenport, 147
F.3d 605, 609-10 (7th Cir. 1998).
Davenport, the United States Court of Appeals for
the Seventh Circuit articulated three conditions that a
petitioner must meet in order to invoke the Savings Clause on
the basis of a change in law. Id. at 610-612. These
conditions were recently summarized in Brown v.
Caraway, 719 F.3d 583 (7th Cir. 2013), another case in
which a petitioner brought a § 2241 petition based upon
a Supreme Court decision interpreting the residual clause of
the ACCA. First, a prisoner “must show that he relies
on a statutory-interpretation case rather than a
constitutional case;” second, he “must show that
he relies on a retroactive decision that he could not have
invoked in his first § 2255 motion;” and third,
“[the] sentence enhancement [must] have been a grave
enough error to be deemed a miscarriage of justice corrigible
therefore in a habeas corpus proceeding.” Id.
at 586 (citations omitted) (internal quotation marks
Amended Complaint must be dismissed for two reasons. First,
Petitioner fails to meet the Davenport requirements
to be able to challenge his sentence through a § 2241
petition, rather than a § 2255 motion. ...