United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT
Townsend, Reg. No. 08785-030, is confined in this District
and seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241(c)(3). His petition for writ of habeas corpus is
ruling on Townsend's motion under 28 U.S.C. § 2255,
District Court Judge John A. Jarvey of the S.D. of Iowa
On August 13, 2008, the petitioner was charged with
conspiring to distribute at least fifty grams of crack
cocaine between September 2005 and January 2008 in Johnson
County in the Southern District of Iowa. United States v.
Ricardo Townsend, 3:08cr0069 (S.D. Iowa). On September
18, 2008, attorney Matthew Leddin was appointed to represent
the petitioner. After granting three continuances at the
request of the petitioner, the case went to trial on February
23, 2009. On February 25, 2009, the jury returned a verdict
finding the petitioner guilty of the conspiracy and, more
specifically, finding that the conspiracy involved fifty
grams or more of crack cocaine. At trial, the government
presented twelve witnesses, ten of whom were persons
cooperating with the United States and most of them were
cooperating in hopes of receiving a substantial sentence
The testimony at trial showed that the petitioner came to the
North Liberty/Iowa City area in 2005 to sell drugs. He and
others formed a group called “Ground Zero”. They
would travel between Johnson County and Chicago, securing
crack cocaine in Chicago and selling it in Johnson County.
They would purchase large amounts of crack cocaine at a time
in Chicago, usually 63 ounces or more. Some of the witnesses
such as Prince Ferguson were relatively equal in culpability
to the petitioner. Others like Daniel Davis and Benjamin Boyd
were very low level dealers purchasing drugs to support crack
cocaine addictions. The witnesses presented a compelling case
against the petitioner.
Petitioner was sentenced on July 1, 2009. Because the jury
found that he conspired to distribute in excess of fifty
grams of crack cocaine and because the petitioner had at
least two prior felony drug convictions, he received a
mandatory minimum sentence of life imprisonment. 21 U.S.C.
§ 841(b)(1)(A). He appealed, claiming that the evidence
was insufficient to convict him. His appeal was denied on
March 30, 2010 and the mandate was issued April 29, 2010.
Townsend v. United States, 4:11-cv-155-JAJ (S.D.
Iowa Aug. 8, 2011) (dkt 4, procedural history).
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). Townsend, 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
Court of Appeals for the Seventh Circuit has identified the
three requirements to invoke the Savings Clause:
In the wake of Davenport, we distilled that holding
into a three-part test: a petitioner who seeks to invoke the
savings clause of § 2255(e) in order to proceed under
§ 2241 must establish: (1) that he relies on “not
a constitutional case, but a statutory-interpretation case,
so [that he] could not have invoked it by means of a second
or successive section 2255 motion, ” (2) that the new
rule applies retroactively to cases on collateral review and
could not have been invoked in his earlier proceeding, and
(3) that the error is “grave enough . . . to be deemed
a miscarriage of justice corrigible therefore in a habeas
corpus proceeding, ” such as one resulting in “a
conviction for a crime of which he was innocent.”
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012);
see also Davenport, 147 F.3d at 611 (referencing the
procedure as one to correct “a fundamental
defect” in the conviction or sentence).
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016),
cert. denied sub nom. Montana v. Werlich, 137 S.Ct.
1813 (2017). “The petitioner bears the burden of coming
forward with evidence affirmatively showing the inadequacy or
ineffectiveness of the § 2255 remedy.”
argues that he is entitled to relief because his conviction
was in violation of the double jeopardy clause and the
indictment was amended during the course of the trial. Both
of these issues could have been raised during direct appeal
or in Townsend's motion pursuant to 28 U.S.C. §
2255. “The essential point is that a prisoner is
entitled to one unencumbered opportunity to receive a
decision on the merits.” Pot ...