United States District Court, S.D. Indiana, Terre Haute Division
June 16, 2015
DEVON GROVES, Petitioner,
LEANN LARIVA, Warden, Respondent.
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL JUDGMENT
HON. JANE MAGNUS-STINSON, JUDGE
Devon Groves is confined at the Federal Correctional Complex in Terre Haute, Indiana. He brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Groves was convicted by a jury in the Northern District of Indiana of being a felon in possession of a firearm and ammunition. His conviction and sentence were affirmed on appeal in United States v. Groves, 559 F.3d 637 (7th Cir. 2009). Groves’ motion to vacate pursuant to 28 U.S.C. § 2255 was denied by the trial court in Groves v. United States, No. 3:06-CR-69 RLM, 2012 WL 3611731 (N.D.Ind. Aug. 17, 2012) aff'd, 755 F.3d 588 (7th Cir. 2014). The claim here concerns the trial court’s characterization of Groves’ 1995 burglary conviction as a crime of violence under U.S.S.G. § 4B1.2(a)(2). This claim was raised and rejected as a basis for an ineffective assistance of counsel allegation in the § 2255 action.
A federal prisoner may use a § 2241 petition for a writ of habeas corpus to attack his conviction or sentence only if § 2255 is ‘inadequate or ineffective.’” Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (quoting 28 U.S.C. § 2255(e)). Nevertheless, 28 U.S.C. § 2244(a) prevents a federal inmate from utilizing § 2241 to challenge the validity of a federal court conviction or sentence which has previously been presented to the federal court for determination, such as when challenged by way of federal collateral review. Valona v. United States, 138 F.3d 693, 694–65 (7th Cir. 1998) (concluding that § 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of a sentence); Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) (barring as a second § 2241 petition a repetitive challenge to application of time credits in the administrative calculation of a federal sentence).
The savings clause of § 2255(e) does not give Groves a second bite at the post-conviction relief apple. No argument he presents dictates otherwise. He mentions Descamps v. United States, 133 S.Ct. 2276 (2013), but this does not benefit him. "To date, the Supreme Court has not made Descamps retroactive on collateral review." Groves v. United States, 755 F.3d 588, 593 (7th Cir. 2014), and the rule in Descamps has been the rule in the Seventh Circuit since at least 2009. See United States v. Woods, 576 F.3d 400, 411 (7th Cir. 2009).
Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). This is an appropriate case for such a disposition for precisely the reasons explained above. That is, petitioner Groves has sought relief pursuant to 28 U.S.C. § 2241 under circumstances which do not permit or justify the use of that remedy. His petition for a writ of habeas corpus is denied.
Judgment consistent with this Entry shall now issue.
Groves did not pay the $5.00 filing fee. He shall have through July 15, 2015 in which to either do so or demonstrate that he lacks the financial means to do so.
IT IS SO ORDERED