United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
J. McKINNEY, JUDGE United States District Court
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). For
the reasons explained in this Entry, this is an appropriate
case for such a disposition.
2009, petitioner Shepherd pleaded guilty to possessing with
intent to distribute marijuana and being a felon in
possession of a firearm. He was sentenced as an armed career
criminal to a total term of 180 months of imprisonment. The
disposition was affirmed in United States v.
Shepherd, No. 09-5507 (6th Cir. May 4, 2011) (order).
the imposition of sentence, Shepherd filed a motion for
relief pursuant to 28 U.S.C. § 2255. The trial court
denied relief. Shepherd most recently sought leave in the
Sixth Circuit in No. 16-5795 to file a second or successive
28 U.S.C. § 2255 motion, challenging his ACCA sentence
based on Johnson v. United States, 135 S.Ct. 2551,
2557(2015). The Sixth Circuit denied that motion on November
16, 2016, explaining:
Shepherd argues that he no longer qualifies as an armed
career criminal because his prior Kentucky burglary
convictions were counted as violent felonies under [18
U.S.C.] § 924(e)(2)(B)(ii)'s now-invalidated
Shepherd was classified as an armed career criminal because
he had three prior Kentucky convictions for second-degree
burglary. The district court specifically found at sentencing
that the burglary convictions constituted "generic"
burglaries and thus were proper predicates under the
ACCA's enumerated offenses clause. We also found on
direct appeal that Shepherd's second-degree burglary
convictions were "generic" burglaries that fell
under the enumerated offenses clause .... Because
Shepherd's predicate offenses were counted under the
enumerated offenses clause rather than the residual clause,
Shepherd has not made a prima facie showing that he is
entitled to relief under Johnson. See Johnson, 135
S.Ct. at 2563.
Accordingly, we DENY Shepherd's motion.
action, in which Shepherd invokes 28 U.S.C. §
2241(c)(3), was then filed on January 12, 2017.
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974); United States v. Bezy, 499
F.3d 668, 670 (7th Cir. 2007). Shepherd, however, challenges
his sentence and seeks habeas corpus relief pursuant to 28
U.S.C. § 2241(c)(3). "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)). Whether § 2255 is inadequate or
ineffective depends on "whether it allows the petitioner
'a reasonable opportunity to obtain a reliable judicial
determination of the fundamental legality of his conviction
and sentence.'" Webster v. Daniels, 784
F.3d 1123, 1136 (7th Cir. 2015) (en banc) (quoting In re
Davenport, 147 F.3d 605, 609 (7th Cir. 1998)). To
properly invoke the Savings Clause of 28 U.S.C. §
2255(e), a petitioner is required to show "something
more than a lack of success with a section 2255 motion,
" i.e., "some kind of structural problem
with section 2255." Id. "The petitioner
bears the burden of coming forward with evidence
affirmatively showing the inadequacy or ineffectiveness of
the § 2255 remedy." Smith v. Warden, FCC
Coleman-Low, 503 F.App'x 763, 765 (11th Cir. 2013)
and of pivotal significance here, under 28 U.S.C. §
2244(a), "[n]o circuit or district judge shall be
required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to
a judgment of a court of the United States if it appears that
the legality of such detention has been determined by a judge
or court of the United States on a prior application for a
writ of habeas corpus, except as provided in section
Sixth Circuit explained that Shepherd's prior convictions
for burglary in Kentucky were violent offenses under the
enumerated-offenses clause of the ACCA. His argument
otherwise was explicitly rejected in No. 16-5795 when his
motion for leave to file a second or successive 28 U.S.C.
§ 2255 motion was denied. The Sixth Circuit's ruling
post-dates Mathis v. United States,136 S.Ct. 2243
(2016), which Shepherd cited in support of his motion in his
filing of July 8, 2016. Sixth Circuit law controls on this
point. Salazar v. Sherrod, 2012 WL 3779075 at *3
(S.D. 111. Aug. 31, 2012) ...