United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE.
Arnoldo Lopez, who is currently incarcerated in the Federal
Correctional Institution in Marion, Illinois
(“Marion”), filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). In the
Petition, he claims that he is “legally and actually
innocent of the crime he pled to, ” and that 21 U.S.C.
§ 841(b)(1)(C), to which he pled guilty, is a
“nonexistent crime” based on the Supreme
Court's ruling in Burrage v. United States, 134
S.Ct. 881, 892 (2014). (Doc. 1).
central issue in Burrage was whether a defendant may
be sentenced under the enhanced penalty provision of Section
841(b)(1)(C) (a 20-year mandatory minimum sentence where
death “results from” use of an unlawfully
distributed drug), if the use of the drug “contributes
to, but is not a but-for cause of, the victim's
death.” Burrage, 134 S.Ct. at 885. The Court
concluded that “but-for” causation is required
for the enhanced penalty. Id. at 892.
Court concludes that the Petition does not survive
preliminary review under Rule 4 and Rule 1(b) of the Rules
Governing Section 2254 Cases in the United States District
September 9, 2004, Petitioner pled guilty to distribution of
heroin resulting in death under 21 U.S.C. § 841(b)(1)(C)
in United States v. Lopez, Case No. 04-cr-209 in the
Western District of Texas (“Criminal Case”).
(Doc. 1, p. 2). On April 15, 2005, Petitioner was sentenced
to a term of 420 months incarceration, along with a fee and
fine, followed by 12 years supervised release. Id.
The underlying facts of the case involved Petitioner selling
heroin to an individual, who then sold or gave some of the
heroin to another person, who overdosed and died after using
it. Id. During his plea agreement proceedings,
Petitioner waived his right to appeal with limited exception.
Id. He later appealed but was unsuccessful. (Doc. 1,
p. 2). Before Burrage, Petitioner filed his first
§ 2255 motion, but it was also unsuccessful.
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
Court need not consider the merits of this case because
Petitioner explicitly waived his right to bring this
challenge in his plea agreement in the Criminal Case.
Criminal Case, Doc. 73-2. According to the plea agreement,
Petitioner agreed to waive “the right to appeal his
sentence on any ground, other than for ineffective assistance
of counsel or prosecutorial misconduct of constitutional
dimension” and agreed “not to contest his
sentence or the manner in which it was determined in any
post-conviction proceeding, including, but not limited to, a
proceeding under 28 U.S.C. § 2255.” Id.
guilty plea is entered knowingly and voluntarily, appeal
waivers are enforceable. Solano v. United States,
812 F.3d 573, 577 (7th Cir. 2016) (citing United States
v. Behrman, 235 F.3d 1049, 1051 (7th Cir. 2000)).
“The appeal waiver stands or falls with the plea
agreement.” Id. Further, a waiver of the right
to challenge a conviction or sentence under § 2255 also
bars a petition under § 2241 because the waiver does not
render the remedy under § 2255 inadequate or
ineffective. Muse v. Daniels, 815 F.3d 265 (7th Cir.
2016) (§ 2241 is a “form of collateral
attack”). Moreover, a subsequent change in the law does
not make an appeal waiver involuntary. United States v.
Vela, 740 F.3d 1150, 1151 (7th Cir. 2014).
vaguely asserts that he pled guilty “out of fear”
after he was told that he would receive life in prison if he
was ultimately convicted after failing to take responsibility
for the decedent's death. (Doc. 1, p. 7). He does not claim
that his plea or appeal and collateral attack waivers were
involuntary or invalid in the Petition, however. In any
event, a § 2241 petition is not the appropriate vehicle
for raising this argument, and in response to his § 2255
motion, when he challenged the waiver of his appeal rights,
the Court determined that the “waiver-of-appeal
provision was clearly informed and voluntary and thus is
enforceable in this case.” Criminal Case, Doc. 75, p.
IS HEREBY ORDERED that the Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) is
summarily DISMISSED with prejudice for the
reasons stated above. Respondent TRUE is
also DISMISSED with prejudice.
Petitioner wishes to appeal this dismissal, he may file a
notice of appeal with this court within sixty 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