United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
currently incarcerated in Federal Correctional Institution
Greenville, brings this habeas corpus action pursuant to 28
U.S.C. § 2241 in order to challenge his sentence for
illegal re-entry of the United States. (Doc. 1, p. 6).
Petitioner claims he received an enhanced sentence and
requests resentencing without the enhancement, which he
believes will make him ineligible for deportation at the
conclusion of his sentence. (Doc. 1, p. 5).
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
Petition is vague in the nature of the crime underlying
Petitioner's incarceration. A review of PACER records
shows that Petitioner was convicted of unlawfully re-entering
the United States after deportation in violation of 8 U.S.C.
§§ 1326(a) and (b)(1). United States v. Elias
Isaac Perez-Rios, 15-cr-0218-ADM-SER-1 (Dist. Minn.
2016) (“criminal case”). Petitioner was sentenced
to 30 months in BOP custody on May 27, 2016 pursuant to
U.S.S.G. § 2L1.2. Id. (Doc. 1, p. 7).
now brings this habeas corpus action pursuant to 28 U.S.C.
§ 2241 and argues that he received a sentencing
enhancement due to a prior conviction for burglary, which
also made him eligible for deportation. (Doc. 1, p. 7).
Petitioner asks to be resentenced without consideration of
his Minnesota burglary conviction so as to make him
ineligible for deportation at the completion of his sentence.
(Doc. 1, p. 5).
initial matter, there is some doubt whether resentencing
Petitioner without the enhancement would actually give
Petitioner the relief he seeks. Petitioner was previously
removed as an illegal alien, and even if he were not deported
due to the present felony conviction, he would likely still
be subject to removal because he has no legal right to stay
in this country.
more to the point, Petitioner cannot proceed in this action
because § 2241 is unavailable to him, and the relief he
seeks is foreclosed by Beckles v. United States, 137
S.Ct. 886 (U.S. 2017).
a person may challenge his federal conviction only by means
of a motion brought before the sentencing court pursuant to
28 U.S.C. § 2255, and this remedy normally supersedes
the writ of habeas corpus. A § 2241 petition by a
federal prisoner is generally limited to challenges to the
execution of the sentence. Valona v. United States,
138 F.3d 693, 694 (7th Cir. 1998); Atehortua v.
Kindt, 951 F.2d 126, 129 (7th Cir. 1991).
prisoners may utilize § 2241, however, to challenge the
legality of a conviction or sentence in cases pursuant to the
“savings clause” of Section 2255(e). The
“savings clause” under § 2255(e) allows a
federal prisoner to file a petition under § 2241, if the
remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See
28 U.S.C. § 2255(e). In considering what it means to be
“inadequate or ineffective, ” the Seventh Circuit
has held that a federal prisoner should be permitted to seek
relief under § 2241 “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).
federal prisoner must meet 3 criteria in order to invoke the
Savings Clause and obtain collateral relief pursuant to
§ 2241. First, a prisoner “must show that he
relies on a [new] 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.” Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (citations
omitted) (internal quotation marks omitted).
Petitioner has affirmatively stated that he did not file a
previous petition for habeas relief under § 2255. (Doc.
1, p. 2). A review of the docket of his criminal case
confirms that no motion pursuant to § 2255 was ever
filed. It appears that § 2255 relief is no longer
available to Petitioner because the 1-year time limitation to
file such a motion ran on May 27, 2017, a year after judgment
was entered against Petitioner. § 2255(f)(1). That is
insufficient to trigger the savings clause. Petitioner relies
on Johnson v. United States, 135 S.Ct. 2551 (U.S.
2015). That case was decided on June 26, 2015,
nearly a year before Petitioner was sentenced. Petitioner
cannot use Johnson to trigger the savings clause
because he could have raised Johnson in a §
2255 proceeding. Moreover, Johnson is not a case of
statutory interpretation; it is a constitutional case.
Welch v. U.S., 136 S.Ct. 1257, 1264 (U.S. 2016);
Price v. United States, 795 F.3d 731, 734 (7th Cir.
2015). Therefore Johnson cannot be the basis of a
§ 2241 petition, and Petitioner is not entitled to any
relief on that basis. The Petition does not meet the first 2
elements of the savings clause in § 2255.
are other problems with the Petition as well.
Johnson addressed language in the Armed Career
Criminal Act, and while the sentencing guidelines contain
identical language in § 4B1.2, that language is not in
§ 2L1.2, Unlawfully Entering or Remaining in the United
States, which Petitioner was sentenced under. Even if it was,
the Supreme Court found in Beckles v. United States
that the sentencing guidelines are not subject to a
Johnson vagueness ...