Henderson v. Walton

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Chief Judge David R. Herndon on 7/18/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES M. HENDERSON,
No. 76058-004,
Petitioner,
vs.

CIVIL NO. 13-cv-00628-DRH

WARDEN WALTON,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner James M. Henderson, currently incarcerated in the United States
Penitentiary at Marion, Illinois, brings this habeas corpus action pursuant to 28
U.S.C. § 2241 to challenge the constitutionality of his indictment, conviction and
sentence. Petitioner pleaded guilty to using a means of interstate commerce—the
internet—to entice someone under the age of 18 years to engage in sexual activity,
in violation of 18 U.S.C. § 2422(b). United States v. Henderson, Case No. 08–cr–
14042 (S.D.Fla.). He was sentenced on October 23, 2002, to imprisonment for
120 months.
Petitioner’s conviction was upheld on direct appeal, and a motion for
rehearing en banc was denied.

Pursuant to 28 U.S.C. § 2255, petitioner

collaterally attacked his sentence, but his petition was denied by the trial court
and a subsequent appeal was unsuccessful. Petitioner has consistently asserted
that his counsel was ineffective, challenged the propriety of his indictment, the
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alleged ambiguity in the statute, and asserted that his plea was uninformed and
involuntary. Petitioner also contends that he is factually innocent of the offense.
Those same arguments are all asserted in the present Section 2241 petition, filed
on June 28, 2013 (Doc. 1).
In the Memorandum of Law attached to the Section 2241 petition,
Henderson contends that 28 U.S.C. § 2255 has proved an ineffective remedy
because, “[t]he Eleventh Circuit and District Court has [sic] foreclosed on
Petitioner’s claims due to the Circuit[‘]s existing precedents and rulings,” and
“[b]ecause the Eleventh Circuit has failed to grant pryor [sic] authorization to file a
successive 2255 motion.” (Doc. 1, pp. 7-8). Citing United States v. Gladish, 536
F.3d 646, 649-50 (7th Cir. 2008) (obscene speech alone did not amount to a
substantial step toward engaging in sexual activity with a minor), Petitioner
perceives that he will fare better in the Seventh Circuit.
Rule 4 of the Rules Governing Section 2254 Cases in United States District
Courts provides that upon preliminary consideration by the district court judge,
“[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Rule 1(b) of those Rules
gives this Court the authority to apply the rules to other habeas corpus cases.
After carefully reviewing the petition in the present case, the Court concludes that
petitioner Henderson is not entitled to relief, and the petition must be dismissed.

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Normally a person may challenge his federal conviction only by means of a
motion brought before the sentencing court pursuant to 28 U.S.C. § 2255, and
this remedy normally supersedes the writ of habeas corpus.

A Section 2241

petition by a federal prisoner is generally limited to challenges to the execution of
the sentence.

Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998);

Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991).

However, a petition

challenging the conviction may be brought pursuant to 28 U.S.C. § 2241 if the
remedy provided by 28 U.S.C. § 2255 is inadequate or ineffective.

See also

Waletski v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) (“prisoner who
challenges his federal conviction or sentence cannot use [Section 2241] at all but
instead must proceed under 28 U.S.C. § 2255.”).
Petitioner asserts that he is one of those for whom the Section 2255 motion
is inadequate or ineffective to test the legality of his detention. The basis for his
assertion is the mere fact that his Section 2255 petition was unsuccessful and
that he has not been permitted to file a successive petition. However, a petitioner
under Section 2241 must demonstrate the inability of a Section 2255 motion to
cure the defect in the conviction. Similarly, the fact that petitioner may be barred
from bringing a second Section 2255 petition is not, in itself, sufficient to render
Section 2255 an inadequate remedy. In re Davenport, 147 F.3d 605, 609–10 (7th
Cir. 1998) (Section 2255 limitation on filing successive motions does not render it
an inadequate remedy for a prisoner who had filed a prior Section 2255 motion).

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The arguments petitioner raises in the instant Section 2241 petition could
have been raised in the context of a Section 2255 motion—in fact, they were.
Petitioner does not point to any change in the law pertinent to his case, that
occurred too recently for him to have brought it up in a timely Section 2255
motion or direct appeal. He even acknowledges that the Gladish decision was
published prior to his plea (see Doc. 1, p. 8). Consequently, Henderson cannot
now use a Section 2241 petition to get a “second bite at the apple” or to merely
reassert arguments that have been rejected.
To summarize, Section 2255 does not prove to be an inadequate remedy
for Petitioner’s current claims.

Consistent with In re Davenport, petitioner

therefore cannot raise this claim under the awning of Section 2241. 147 F.3d 605
(7th Cir. 1998).
This action is summarily DISMISSED with prejudice. The Clerk of Court
is DIRECTED to close this case and enter judgment accordingly.
Petitioner is ADVISED that he remains liable for the $5.00 filing fee,
regardless of the dismissal of his petition.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED.R.APP.P. 4(a)(4). A
motion for leave to appeal in forma pauperis should set forth the issues petitioner
plans to present on appeal.

See FED.R.APP.P. 24(a)(1) (C).

If petitioner does

choose to appeal and is allowed to proceed as a pauper, he will be liable for a
portion of the $455.00 appellate filing fee (the amount to be determined based on

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his prison trust fund account records for the past six months) irrespective of the
outcome of the appeal. See FED.R.APP.P. 3(e); 28 U.S.C. § 1915(e) (2); Ammons
v. Gerlinger, 547 F.3d 724, 725–26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858–59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998). A timely motion filed pursuant to Federal Rule of Civil Procedure 59(e)
may toll the 30–day appeal deadline. It is not necessary for petitioner to obtain a
certificate of appealability. Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATE: July 18, 2013

Digitally signed by
David R. Herndon
Date: 2013.07.18
16:18:23 -05'00'
Chief Judge
United States District Court

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