United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
Jane Magnus-Stinson, Chief Judge
Barbour seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241(c)(3). His petition for writ of habeas corpus is
January 15, 2013, Barbour pled guilty to possessing
ammunition as a convicted felon- a violation of 18 U.S.C.
§ 922(g)(1). His sentence was enhanced under the Armed
Career Criminal Act, 18 U.S.C. § 924(e). That
enhancement was reversed on appeal. See United States v.
Barbour, 750 F.3d 535 (6th Cir. 2014). On remand,
Barbour was sentenced to 87 months' imprisonment. That
disposition was affirmed in United States v.
Barbour, 629 F. App'x 727 (6th Cir. 2015). Barbour
is currently seeking relief via 28 U.S.C. § 2255 under
Johnson v. United States, 135 S.Ct. 2551, 2557
(2015). That challenge was docketed in the trial court as No.
1:16-cv-00438-CLC, although the development of the action is
chronicled in the underlying criminal action, No.
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). Barbour, 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.”
expanded record here shows without doubt that Barbour is not
entitled to seek habeas relief via the savings clause of
§ 2255(e). This is because he filed a timely 28 U.S.C.
§ 2255 in the trial court asserting the same claim which
is asserted here. The United States has defended that motion
on the merits, not because of some asserted jurisdictional or
procedural deficiency. The present action is Barbour's
effort at a second bite at the post-conviction apple while
the first bite is still in progress.
on the foregoing, Barbour 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. Because there is a
collateral challenge pending in the trial court, the
dismissal of the present action shall be without prejudice.
consistent with this Entry shall now issue.