United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael Lumbert filed a petition for writ of habeas corpus
under 28 U.S.C. §2241 (Doc. 1) challenging the
enhancement of his sentence as a career offender under
U.S.S.G. § 4B1.1. He purports to rely on Mathis v.
United States, 136 S.Ct. 2243 (2016).
filed a response at Doc. 8, and petitioner filed a reply at
Facts and Procedural History
to a written plea agreement, Lumbert pleaded guilty to one
count of possession with intent to distribute cocaine base
(“crack cocaine”) in the Western District of
Wisconsin. The plea agreement did not include a waiver of
appeal rights. On December 6, 2011, he was sentenced to 188
months imprisonment. United States v. Lumbert, Case
No. 11-cr-00066-bcc, Docs. 13 & 21. A copy of the docket
sheet from petitioner's criminal case is attached to Doc.
8 in this case as Ex. 4. A copy of the plea agreement is
attached to Doc. 8 as Ex. 1.
presentence report stated that petitioner qualified as a
career offender because he had four prior convictions for
controlled substance offenses under Wisconsin law. Doc. 9,
Ex. 1, p. 8. In addition, because the government had filed a
notice of enhancement under 21 U.S.C. § 851, the
statutory maximum term of imprisonment was 30 years. Doc. 9,
Ex. 1, p. 21.
did not file a direct appeal. He filed a motion under 28
U.S.C. § 2255 in November 2012 arguing ineffectiveness
of counsel. He did not challenge his classification as a
career offender. The motion was denied in March 2013. Case
No. 11-cr-00066-bbc, Doc. 30.
Standards Applicable to Section 2241
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).
prisoner who has been convicted in federal court is generally
limited to challenging his conviction and sentence by
bringing a motion pursuant to 28 U.S.C. §2255 in the
court which sentenced him. A motion under §2255 is
ordinarily the “exclusive means for a federal prisoner
to attack his conviction.” Kramer v. Olson,
347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is
generally limited to bringing only one motion 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.
it is 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.” The Seventh Circuit
construed the savings clause in In re Davenport, 147
F.3d 605, 611 (7th Cir. 1998): “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 so fundamental a
defect in his conviction as having been imprisoned for a
Seventh Circuit has explained that, in order to fit within
the savings clause following Davenport, a petitioner
must meet three conditions. First, he must show that he
relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on
a decision that he could not have invoked in his first
§2255 motion and that case must apply
retroactively. Lastly, he must demonstrate that there has
been a “fundamental defect” in his conviction or
sentence that is grave enough to be deemed a miscarriage of
justice. Brown v. Caraway, 719 F.3d 583, 586 (7th
Cir. 2013). See also, Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012).
Mathis v. United States, 136 S.Ct. 2243 (2016),
petitioner argues that his prior convictions for drug
offenses under Wisconsin law no longer qualify as controlled