United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
Michael Veysada, an inmate in the Bureau of Prisons, filed a
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241 on May 9, 2017. (Doc. 1). Veysada was sentenced to 188
months imprisonment in 2010 after pleading guilty to two
counts of bank robbery by force or violence in violation of
18 U.S.C. § 2113(a). United States v. Michael
Veysada, No. 09-cr-0697, Doc. 33 (N.D. Ill. May 5,
2010). His sentence was enhanced after the sentencing judge
found him to be a career offender under U.S.S.G. §
4B1.1, based on three prior felony convictions for crimes of
violence - two separate bank robbery convictions in 1992, and
a 2003 bank robbery conviction, all in violation of 18 U.S.C.
now invokes Mathis v. United States, ___U.S. ___,
136 S.Ct. 2243 (2016) to challenge his designation as a
career offender based on the prior bank robbery convictions
and contends he is entitled to be resentenced without that
designation. Specifically, Veysada argues that bank robbery
as defined by 18 U.S.C. § 2113(a) criminalizes more
behavior than the generic definition of robbery under federal
law, and that § 2113(a)'s criminalization of bank
robbery “by force and violence, or by intimidation,
” does not meet the definition of a “crime of
violence” under the Sentencing Guidelines because it
does not require “violent force” to sustain a
conviction. (Doc. 1, pp. 7-9).
opposes issuance of the Writ on several grounds. Respondent
first argues that Veysada cannot satisfy the requirements of
§ 2255(e)'s savings clause because his argument was
not foreclosed by binding precedent before Mathis
was decided and his alleged harm cannot be deemed a
“miscarriage of justice” because his sentence
fell within the statutory maximum penalty for his crimes of
conviction notwithstanding his career offender designation.
(Doc. 10, pp. 4-10). Respondent further argues that Veysada
procedurally defaulted his current habeas claim by failing to
raise it on direct appeal. (Id. at pp. 11-14).
Finally, Respondent argues that Veysada's claim fails on
the merits because his prior bank robbery convictions meet
the Sentencing Guidelines' definition of “crime of
violence” as they both (1) have as an element the use,
attempted use, or threatened use of physical force, and (2)
fit the generic definition of robbery in the enumerated
clause of U.S.S.G. § 4B1.2(a)(2). (Id. at pp.
14-18). Veysada replied to Respondent's response. (Doc.
matter is now ripe for resolution. For the reasons discussed
below, Veysada's § 2241 Petition (Doc. 1) will be
History and Relevant Facts
pleaded guilty to two counts of bank robbery in violation of
18 U.S.C. § 2113(a) on December 11, 2009. United
States v. Michael Veysada, No. 09-cr-0697, Docs. 23, 24
(N.D. Ill. December 11, 2009). He entered into a formal plea
greement in which he agreed that he was properly considered a
career offender under U.S.S.G. § 4B1.1(a) due to his
three prior federal bank robbery convictions in 1992 and
2003. Id. at Doc. 24, pp. 9, 12-14. He also
acknowledged in the Plea Agreement that each bank robbery
count carried maximum sentences of 20 years (240 months)
imprisonment. Id. at p. 6; 18 U.S.C. § 2113(a).
Veysada did not object to the Plea Agreement or sentencing
proceedings and was sentenced to 188 months imprisonment on
May 5, 2010. United States v. Michael Veysada, No.
09-cr-0697, Doc. 33 (N.D. Ill. May 5, 2010).
did not file a direct appeal. He did, however, file a motion
under 28 U.S.C. § 2255 in the Northern District of
Illinois seeking to be resentenced without the career
offender designation. United States v. Veysada, No.
16-cv-9090, Doc. 1 (N.D. Ill. September 19, 2016). His §
2255 motion raised arguments similar to those in his Petition
in this case, but invoked Descamps v. United States,
570 U.S. 254 (2013) instead of Mathis. Veysada's
§ 2255 motion was not ruled on by the Northern District
of Illinois because he voluntarily withdrew it on March 16,
2017. Id. at Doc. 3.
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 instead limited to
challenges regarding the execution of a sentence. See
Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998). Aside from the direct appeal process, a § 2255
motion is ordinarily the “exclusive means for a federal
prisoner to attack his conviction.” Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003). A prisoner is
generally limited to one challenge of his conviction
and sentence under § 2255. A prisoner may not file a
“second or successive” § 2255 motion unless
a panel of the appropriate court of appeals certifies that
such motion either 1) contains 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) invokes “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. § 2255(h).
very limited circumstances, however, it is possible for a
prisoner to challenge his federal conviction or sentence
under § 2241. 28 U.S.C. § 2255(e) contains a
“savings clause” under which a federal prisoner
can file a § 2241 petition when the remedy under §
2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e). See
United States v. Prevatte, 300 F.3d 792, 798-99 (7th
Cir. 2002). 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 nonexistent offense.”
Davenport, a petitioner must meet three conditions
to trigger the savings clause. 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). In other words, something more than a
lack of success with a Section 2255 motion must exist before
the savings clause is satisfied.” See Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
argues that Mathis v. United States, ___U.S. ___,
136 S.Ct. 2243 (2016) dictates that his prior felony bank
robbery convictions under 18 U.S.C. § 2113(a) do not
qualify as predicate crimes of violence for purposes of the
career offender enhancement found in the Sentencing
Guidelines. (Doc. 1, pp. 6-11). Before reaching the merits of
this argument, the Court must first consider whether
Veysada's claim can be brought within the narrow scope
§ 2255's savings clause. The Court agrees with
Respondent that Veysada cannot demonstrate the existence of a
fundamental defect in his conviction or sentence that is
grave enough to ...