Lorenzo D. Roundtree, Petitioner-Appellant,
Jeffrey E. Krueger, Warden, United States Penitentiary, Terre Haute, Respondent-Appellee.
November 14, 2018
from the United States District Court for the Southern
District of Indiana, Terre Haute Division. No.
2:14-cv-00284-JMS-DKL Jane E. Magnus-Stinson, Chief Judge.
Easterbrook, Sykes, and Scudder, Circuit Judges.
Easterbrook, Circuit Judge.
Roundtree was sentenced to life in prison for selling heroin
that led to a user's death. 21 U.S.C. §841(b)(1)(C).
Seven years later the Supreme Court held that a judge must
tell a jury that the death-resulting condition is satisfied
only if the drug was a but-for cause of the fatality; a
contributing cause is not enough. Bur-rage v. United
States, 571 U.S. 204 (2014). The charge to the jury at
Roundtree's trial did not satisfy Burrage, and
he filed collateral agacks on his sentence in both the
Northern District of Iowa (where his trial occurred) and the
Southern District of Indiana (where he is confined). The
collateral agack in Iowa rests on 28 U.S.C. §2255 and
the one in Indiana on 28 U.S.C. §2241. Both district
judges rejected his contentions. We put this appeal on hold
while the Eighth Circuit considered Roundtree's appeal in
the §2255 proceeding.
some intermediate steps that we need not recount, the Eighth
Circuit held that, because Burrage is retroactive,
Roundtree is entitled to use §2255 to contest his
conviction despite the lapse of time, but that his failure to
dispute the jury instruction at trial forfeited any benefit
from a later decision by the Supreme Court. Roundtree v.
United States, 885 F.3d 1095 (8th Cir. 2018). The Eighth
Circuit recognized that a procedural default may be excused
if the accused is innocent, see Bousley v. United
States, 523 U.S. 614, 623-24 (1998), but found that
Roundtree had not met that requirement: he complains about a
deficient instruction rather than a conviction on
insufficient evidence. He has not argued in the Eighth
Circuit (or here) that a properly instructed jury would have
been compelled to acquit him of either selling heroin or the
death-results enhancement. The Eighth Circuit also concluded
that Roundtree was not prejudiced by the error, because he
was sure to have been convicted even under the instruction
required by Burrage.
reactivated the appeal in this circuit, and the parties filed
briefs addressing the significance of the Eighth
Circuit's decision. Roundtree asks us to ignore it and
make an independent decision; the Warden contends that the
Eighth Circuit's decision is conclusive.
2241 authorizes federal courts to issue writs of habeas
corpus, but §2255(e) makes §2241 unavailable to a
federal prisoner unless it "appears that the remedy by
motion [under §2255] is inadequate or ineffective to
test the legality of [the] detention." This court has
held that §2255 is "inadequate or ineffective"
when it cannot be used to address novel developments in
either statutory or constitutional law, whether those
developments concern the conviction or the sentence. See,
e.g., In re Davenport, 147 F.3d 605 (7th Cir. 1998);
Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013);
Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015)
(en banc). Some circuits have agreed with us, while others
have not. See, e.g., McCarthan v. Director, 851 F.3d
1076 (11th Cir. 2017) (en banc); Prost v. Anderson,
636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.). The Solicitor
General has asked the Supreme Court to resolve the conflict.
See United States v. Wheeler, No. 18-420 (petition
filed Oct. 3, 2018). But this appeal does not depend
on the outcome of Wheeler, because none of this
circuit's decisions-and none in the circuits that agree
with Davenport, Brown, and
Webster-permits relitigation under §2241 of a
contention that was actually resolved in a proceeding under
§2255, unless the law changed after the initial
does not contend that the law has changed in the slightest
after the Eighth Circuit rejected his contentions. He seeks
relief under a decision the Supreme Court made in 2014, not
under any development postdating the Eighth Circuit's
decision. Roundtree recognizes that this circuit already has
stated that Burrage cannot be used to litigate under
§2241 if §2255 could have been (or was) used to
raise the issue. See PrevaDe v. Merlak, 865 F.3d
894, 897 (7th Cir. 2017). Round-tree asks us to reconsider,
contending that life in prison is such a harsh punishment
that procedural bars should be swept away. Yet we lack
authority to create exceptions to statutes. Section 2255(e)
prevents resort to §2241 unless §2255 is
"inadequate or ineffective" to test the validity of
a conviction or sentence. The Eighth Circuit's decision
shows that §2255 afforded a means to address
Roundtree's arguments. His problem lies not in §2255
but in his own failure to object at trial, plus the Eighth
Circuit's conclusion that an instruction comporting with
Burrage would not have affected the outcome.
1996, when the Antiterrorism and Effective Death Penalty Act
(AEDPA) amended §2255, a petition could be filed in the
sentencing court at any time-and multiple petitions could be
filed, provided they did not abuse the writ. The 1996 Act
added §2255(f), which set a one-year time limit on
petitions but also restarts the time if the Supreme Court
changes the law with retroactive effect (§2255(f)(3)).
The 1996 Act also added §2255(h), which limits second or
subsequent petitions. Neither of these changes affected
Roundtree, who was able to use extra time under
§2255(f)(3) to file his initial §2255 motion in
Iowa. What he now wants is to use §2241 in circumstances
that would have been called an abuse of the writ before the
1996 Act replaced that common-law doctrine with §2255(f)
and (h). An agempt to relitigate a theory, in the absence of
an intervening change of law, was taken as a paradigm abuse
of the writ. See, e.g., Salinger v. Loisel, 265 U.S.
224 (1924); Wong Doo v. United States, 265 U.S. 239
(1924); Sanders v. United States, 373 U.S. 1, 17-18
(1963). The 1996 changes were designed to curtail
relitigation of collateral agacks, yet Roundtree wants
something that would have been unavailable even before 1996.
That's not permissible. See In re Page, 179 F.3d
1024 (7th Cir. 1999), which says that arguments that would
have abused the writ before 1996 also cannot be raised after
litigated and lost in the Eighth Circuit. The Supreme Court
of the United States, not another court of appeals, is the
right forum for his argument that the Eighth Circuit erred.
Cf. Christian ...