United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
currently incarcerated in Greenville Federal Correctional
Institution, brings this habeas corpus action pursuant to 28
U.S.C. § 2241 to challenge his convictions pursuant to
18 U.S.C. § 924(c). (Doc. 4, p. 5); United States v.
Braxton, 94-cr-068-CAB-3 (N.D. Ohio) (“criminal
case”). The Petition was filed on April 13, 2018.
reviewing the Petition itself, a bit of housekeeping is in
order. Petitioner filed this action on April 13, 2018,
against Respondent United States of America. Three days
later, the Court received two further Petitions from Braxton.
Both came with letters indicating that Petitioner was trying
to correct typos in his earlier submissions, specifically the
use of the United States as the Respondent, and an
unidentified typo. (Doc. 3) (Doc. 4). On May 11, 2018,
Petitioner filed a motion reiterating that he had made a typo
and asking the Court to consider his later-filed petition. As
it appears that Petitioner wishes the Court to consider Doc.3
(the cover letter with Doc. 3 indicates that it was the last
Petition submitted), and the differences between the
Petitions appear to be minor typos, the Court
GRANTS Petitioner's motion, and will
consider the last-filed Petition, which is docketed at Doc.
3. For clarity, the Clerk is DIRECTED to
strike Docs. 1 and 4 at Petitioner's request.
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
was tried in the Northern District of Ohio in 1994 based on
his participation in a string of bank robberies. (Doc. 3, p.
6). He was convicted on 3 counts of robbery and 1 count of
conspiracy to commit robbery. Id. Petitioner was
sentenced to 135 months on these charges, and does not
challenge these convictions in the present Petition.
Id. Petitioner was also found guilty of 4 counts of
violating 18 U.S.C. § 924(c), use of a firearm in the
commission of a felony. Id. On these counts,
Petitioner received sentences totaling 65 years. Id.
Petitioner believes that his § 924(c) convictions are
invalid pursuant to Rosemond v. United States, 134
S.Ct. 1240 (2014), and asks this Court to vacate his
convictions on those 4 counts. Id. Petitioner argues
that the savings clause applies to permit him to use §
2241 to raise this claim. (Doc. 3, p. 5).
a prisoner may challenge his federal conviction or sentence
only by means of a § 2255 motion brought before the
sentencing court, and this remedy typically supersedes the
writ of habeas corpus. Brown v. Caraway, 719 F.3d
583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012)). A writ of habeas corpus under
§ 2255 requires the petitioner to file his challenge in
the district that imposed the criminal sentence on him. See
28 U.S.C. § 2255(a). In this case, Petitioner is clearly
attacking his sentence. However, he has alleged that he has
already filed at least 1 motion pursuant to § 2255, and
that remedy is no longer available to him without leave of
the appellate court.
“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). A
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).
Seventh Circuit, Rosemond is a retroactive case of
statutory construction, but it only triggers the savings
clause if a petitioner was completely foreclosed from making
an actual knowledge argument at the time of his § 2255
petition. Montana v. Cross, 829 F.3d 775, 785 (7th
Cir. 2016). In this case, that determination turns on when
Petitioner filed his first § 2255 motion, and what the
relevant law was in the Sixth Circuit, where Petitioner was
convicted. As both of those matters are unclear on the
current record, the Court finds that further briefing would
be helpful. For that reason, T.G. Werlich is ordered to
RESPOND to the Petition, to more fully
develop this issue and any other issues he would like to
IS HEREBY ORDERED that Respondent shall answer the
petition or otherwise plead within thirty days of the date
this order is entered. This preliminary order to respond does
not, of course, preclude the State from making whatever
waiver, exhaustion, or timeliness argument it may wish to
present. Service upon the United States Attorney for the
Southern District of Illinois, 750 Missouri Avenue, East St.
Louis, Illinois shall constitute sufficient service.
IS FURTHER ORDERED Petitioner's Motion to
Correct Typographic error is GRANTED. (Doc.
5). Docs. 1 and 4 are STRICKEN at
Petitioner's request. The Petition at Doc. 3 is the
operative Petition; the Response shall be filed to that
document. The Clerk of Court is DIRECTED to
terminate respondent “USA” and substitute
“T.G. Werlich” in its place.
IS FURTHER ORDERED that pursuant to Local Rule
72.1(a) (2), this cause is referred to United States
Magistrate Judge Clifford ...