United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241 AND
DIRECTING ENTRY OF FINAL JUDGMENT
William T. Lawrence, Senior Judge.
Ricardo Osuna seeks a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. For the reasons discussed
in this Order, his petition for writ of habeas corpus is
Section 2241 Standard
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Shepherd v. Krueger, 911
F.3d 861, 862 (7th Cir. 2018); Webster v. Daniels,
784 F.3d 1123, 1124 (7th Cir. 2015). Under very limited
circumstances, however, a prisoner may employ Section 2241 to
challenge his federal conviction or sentence.
Webster, 784 F.3d at 1124. This is because
“[§] 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.'” Roundtree v. Krueger, 910
F.3d 312, 313 (7th Cir. 2018). Section 2255(e) is known as
the “savings clause.” The Seventh Circuit 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.” Roundtree, 910 F.3d at 313
(citing e.g., In re Davenport, 147 F.3d 605 (7th
Cir. 1998); Brown v. Caraway, 719 F.3d 583 (7th Cir.
2013); Webster, 784 F.3d at 1124.
Seventh Circuit construed the savings clause in In re
A procedure for postconviction relief can be fairly termed
inadequate when it is so configured as to deny a convicted
defendant any opportunity for judicial rectification of so
fundamental a defect in his conviction as having been
imprisoned for a nonexistent offense.
In re Davenport, 147 F.3d at 611. The Seventh
Circuit has explained that, to fit within the savings clause
following Davenport, a petitioner must meet three
conditions: “(1) the petitioner must rely on a case of
statutory interpretation (because invoking such a case cannot
secure authorization for a second § 2255 motion); (2)
the new rule must be previously unavailable and apply
retroactively; and (3) the error asserted must be grave
enough to be deemed a miscarriage of justice, such as the
conviction of an innocent defendant.” Davis v.
Cross, 863 F.3d 962, 964 (7th Cir. 2017);
Brown, 719 F.3d at 586; see also Roundtree,
910 F.3d at 313 (acknowledging circuit split regarding
Davenport conditions and holding that relitigation
under § 2241 of a contention that was resolved in a
proceeding under § 2255 is prohibited unless the law
changed after the initial collateral review).
Factual and Procedural Background
2010, in the United States District Court for the Middle
District of North Carolina, Osuna pleaded guilty to one count
of armed bank robbery, in violation of 18 U.S.C. §
2113(a) and (d); and one count of carrying and using, by
brandishing, a firearm during and in relation to a crime of
violence, that is, armed robbery, in violation of 18 U.S.C.
§ 924(c)(1)A)(ii). See United States v. Osuna,
1:10-cr-00170-WO-2 (“Crim. Dkt.”), Dkt. 17. He
was sentenced to an aggregate sentence of 181 months'
imprisonment, which included 84 consecutive months for
brandishing a firearm during a crime of violence. Crim. Dkt.
did not appeal. Nor has he filed a motion to vacate his
conviction or sentence under 28 U.S.C. § 2255.
30, 2018, Osuna filed a § 2241 petition arguing that his
sentence is improper. Dkt. 1, 2. The United States has
responded and Osuna has not replied. The petition is now ripe
seeks relief pursuant to § 2241 arguing that the Supreme
Court decisions in Johnson v. United States, 135
S.Ct. 2551, 2557 (2015) and Sessions v. Dimaya, 138
S.Ct. 1204 (2018) invalidate his sentence. Johnson
held that the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
is void for vagueness, thereby invalidating any increased
sentence imposed under that subsection. The Dimaya
court held that the “residual clause” in 18
U.S.C. § 16(b), which renders deportable any alien
convicted of an “aggravated felony” after
entering the United States, is impermissibly vague under the
Fifth Amendment's Due Process Clause. 138 S.Ct. at 1210.
cannot obtain relief under § 2241 because he has failed
to show that § 2255 is ineffective or inadequate to
challenge his sentence. This is because Johnson and
Dimaya are cases of constitutional, not statutory,
interpretation and he can pursue any claim based on
Johnson and Dimaya in a motion for relief
pursuant to § 2255. This is true even if his § 2255
motion would be successive. See Garza v. Lappin, 253
F.3d 918, 992 (7th Cir. 2001) (“The mere fact that
[the] petition would be barred as a successive petition under
§ 2255 . . . is not enough to bring the petition under
§ 2255's savings clause; otherwise, the careful
structure Congress has created to avoid repetitive filings
would mean little or nothing.”); cf. Montana v.
Cross, 829 F.3d 775, 783 (7th Cir. 2016) (explaining
that to invoke the savings clause a petitioner must establish
that he relies on a statutory case so that he cannot pursue a
second or successive 2255 motion). His constitutional claim
is therefore not the type of claim that can support relief
under § 2241. See Davis, 863 F.3d at 964
(explaining that a § 2241 petitioner must rely on a case
of statutory interpretation); see also Taylor v.
Gilkey,314 F.3d 832, 836 (7th Cir. 2002). Moreover, the
Fourth Circuit has held that bank robbery is a crime of
violence under the “force” clause, not the
residual clause of the ACCA. United States v.
McNeal,818 F.3d 141, 153 (4th Cir. 2016). Thus, Osuna
has failed to establish that he would ...