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
X, Reg. No. 212059-045, 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
sentenced to terms of imprisonment totaling, in the
aggregate, life plus 60 months, on November 4, 2010, in the
United States District Court for the Western District of
Missouri, in case number 6:08-cr-3109-MDH-1. Specifically, X
was convicted at trial of: conspiracy to distribute
controlled substances, in violation of 21 U.S.C. §§
846, and 841 (a)(1) and (b)(1)(A), (B), (C), and (D); four
counts of possession with intent to distribute a controlled
substance, in violation of 21 U.S.C. § 841 (a)(1),
(b)(1)(C) and (D); five counts of distribution of a
controlled substance, in violation of 21 U.S.C. § 841
(a)(1) and (b)(1)(C); using a firearm during and in relation
to drug trafficking crimes, in violation of 18 U.S.C. §
924(c)(1)(A); and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1).
his direct appeal was completed, X filed a motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255.
The trial court wrote:
In his first accusation of ineffectiveness of counsel on
appeal, Movant claims that Mr. Lewis was ineffective for
failing "to raise and argue the fact that the trial
court erred when it refused to sentence the petitioner under
the Fair Sentencing Act that went in effect on August 3,
2010." Movant's case falls into a unique class in
that he was convicted of a conspiracy alleged to have
occurred before the enactment of the Fair Sentencing Act, but
was sentenced thereafter, on November 4, 2010. "[T]he
Fair Sentencing Act's more lenient penalties" do
"apply to offenders who committed [cocaine base] crimes
before August 3, 2010, but were sentenced after that
date." Dorsey v. United States, 132 S.Ct. 2321,
2324 (2012). Movant was not prejudiced, however, because this
Court specifically held that the conspiracy of which Movant
was a part involved more than 500 grams of cocaine base,
above the 280-gram threshold that applied after August 3,
2010. Thus, Movant's statutory minimum was unaffected by
the changes in the drug quantity amounts, and his counsel was
not ineffective in not raising this issue on appeal.
Furthermore, Movant cannot show that he suffered any
X v. United States, 6:12-cv-3480-GAF, docket number
24 at pages 6-7 (June 26, 2013).
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). X, 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." Smith v.
Warden, FCC Coleman - Low, 503 F.App'x 763, 765
(11th Cir. 2013) (citation omitted).
action, X raises two related grounds for relief. First, he
argues that he was denied due process when the trial court
refused to apply the "Fair Sentencing Act of 2010"
to his case. Second, X argues that the Fair Sentencing Act of
2010 removed him from qualifying as a career offender under
21 U.S.C. § 841(b)(1). Both of these issues were raised
during X's motion pursuant to 28 U.S.C. § 2255, and
both were rejected by the sentencing court. "The
essential point is that a prisoner is entitled to one
unencumbered opportunity to receive a decision on the
merits." Potts v. United States, 210 F.3d 770
(7th Cir. 2000). X had that opportunity and used it. He is
not entitled to more.
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. X has sought relief pursuant to
28 U.S.C. § 2241 under circumstances which do not permit