Wilson v. Cross

Filing 19

ORDER DENYING Habeas corpus petition and DISMISSING CASE with prejudice. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Chief Judge David R. Herndon on 9/26/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH WILSON,
Petitioner,
vs.

Civil No. 13-cv-668-DRH-CJP

JAMES N. CROSS,
Respondent.
MEMORANDUM and ORDER
HERNDON, Chief Judge:
Joseph Wilson’s petition for writ of habeas corpus under 28 U.S.C. §2241
(Doc. 1) is now before the Court.
In 2008, petitioner pled guilty to a charge of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g) in the Western District of
Missouri.

He was sentenced as an Armed Career Criminal under 18 U.S.C.

§924(e) to 180 months imprisonment. See, United States v. Wilson, 324 Fed.
Appx. 546 (2009).

He now argues that he is entitled to habeas relief because his

civil rights were restored on one of his predicate offenses.
Respondent argues that petitioner is precluded from bringing a §2241
petition because he could have raised this claim in a motion under 28 U.S.C.
§2255.
Relevant Facts and Procedural History
Petitioner filed a direct appeal in which he did not raise the claim he raises
here. The mandate affirming his conviction and sentence was issued on May 22,
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2009. United States v. Wilson, Case No. 07-cr-3053-MDH, Doc. 60 (W.D. Mo.).
Petitioner did not file a timely §2255 motion. On October 12, 2010, he filed
a pro se motion for extension of time to file a §2255 motion. Case No. 07-cr3053-MDH, Doc. 61. That motion was denied on November 4, 2010. Petitioner’s
next move was to file a §2255 motion in the Western District of Missouri on May
5, 2014. That motion was denied as untimely on August 15, 2014. Wilson v.
United States, Case No. 14-cv-3214-MDH, Doc. 12 (W.D. Mo.).
Legal Standards Applicable to Section 2241
Generally, petitions for writ of habeas corpus under 28 U.S.C. §2241 may
not be used to raise claims of legal error in conviction or sentencing, but are
limited to challenges regarding the execution of a sentence. See, Valona v. United
States, 138 F.3d 693, 694 (7th Cir.1998).
A prisoner who has been convicted in federal court is generally limited to
challenging his conviction and sentence by bringing a motion pursuant to 28
U.S.C. §2255 in the court which sentenced him.

A motion under §2255 is

ordinarily the “exclusive means for a federal prisoner to attack his conviction.”
Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is generally
limited to bringing only one motion under §2255.

A prisoner may not file a

“second or successive” motion unless a panel of the appropriate court of appeals
certifies that such motion contains either 1) newly discovered evidence “sufficient
to establish by clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense,” or 2) “a new rule of constitutional

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law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable.” 28 U.S.C. §2255(h).
However, it is possible, under very limited circumstances, for a prisoner to
challenge his federal conviction or sentence under §2241.

28 U.S.C. §2255(e)

contains a “savings clause” which authorizes a federal prisoner to file a §2241
petition where the remedy under §2255 is “inadequate or ineffective to test the
legality of his detention.” The Seventh Circuit construed the savings clause in In
re Davenport, 147 F.3d 605, 611 (7th Cir. 1998):

“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.”

The Seventh Circuit has explained that, in order to fit

within the savings clause following Davenport, a petitioner must meet three
conditions. First, he must show that he relies on a new statutory interpretation
case rather than a constitutional case. Secondly, he must show that he relies on a
decision that he could not have invoked in his first §2255 motion and that case
must apply retroactively.

Lastly, he must demonstrate that there has been a

“fundamental defect” in his conviction or sentence that is grave enough to be
deemed a miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir.
2013). See also, Brown v. Rios, 696 F3d 638, 640 (7th Cir. 2012).
In order to show that §2255 is inadequate to test the legality of his
detention, a petitioner must “first show that the legal theory he advances relies on

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a change in law that both postdates his first §2255 motion (for failure to raise a
claim the first time around does not render §2255 ‘inadequate’) and ‘eludes the
permission in section 2255 for successive motions.’” Kramer v. Olson, 347 F.3d
214, 217 (7th Cir. 2003), citing Davenport, 147 F.3d at 611.
Analysis
Petitioner argues that he relies on case law that was not available to him at
the time of his direct appeal or during the one-year period when he could have
filed a timely §2255 motion. He does not specify which case he relies upon, but it
is evident that his argument about the restoration of his civil rights derives from
Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009).
Buchmeier does not help petitioner. First, Buchmeier did not announce a
new rule. Rather, it reaffirmed long-standing Seventh Circuit precedent. Even if
it had announced a new rule, Buchmeier would not enable Wilson to bring a
§2241 petition in this District. In Buchmeier, the Seventh Circuit noted that there
is a circuit split on the application of the “anti-mousetrapping” provision of 18
U.S.C. § 921(a)(20), and the Eighth Circuit is on the opposite side of the split
from the Seventh Circuit. Buchmeier, 581 F.3d at 565. Accordingly, Buchmeier
does not bring petitioner within the narrow Davenport exception. “When there is
a circuit split, there is no presumption that the law in the circuit that favors the
prisoner is correct, and hence there is no basis for supposing him unjustly
convicted merely because he happens to have been convicted in the other circuit.”
In re Davenport, 147 F.3d 605, 612 (7th Cir. 1998).

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Further, Buchmeier was available to petitioner during the one-year period
when he could have filed a timely §2255 motion.

Buchmeier was decided on

September 10, 2009. The one-year period for filing a §2255 motion expired on
August 22, 2010. See, Wilson v. United States, Case No. 14-cv-3214-MDH, Doc.
12 (order dismissing §2255 motion as untimely).
The fact that petitioner failed to file a timely §2255 motion does not make
the remedy offered by §2255 inadequate or ineffective. Where the claim being
advanced in a §2241 petition could have been advanced in a prior §2255 motion,
the remedy offered by §2255 is not inadequate or ineffective. Taylor v. Gilkey,
314 F.3d 832, 835-836 (7th Cir. 2002); Davenport, 147 F.3d at 609. “A prisoner
cannot be permitted to lever his way into section 2241 by making his section
2255 remedy inadequate….”

Morales v. Bezy, 499 F.3d 668, 672 (7th Cir.

2007)(emphasis in original).
In his reply, Wilson argues that he is relying on McQuiggin v. Perkins, 133
S.Ct. 1924 (2013).

McQuiggin holds that a petitioner who asserts a credible

claim of actual innocence may be able to overcome the statute of limitations for
filing a petition for habeas relief under 28 U.S.C. §2254. That case does not apply
here.

First, McQuiggin discussed only a claim of actual innocence of the

conviction, and held that the petitioner must still meet the “demanding” standard
of Schlup v. Delo, 115 S.Ct. 851 (1995), which petitioner here cannot do.
McQuiggin, 133 S. Ct. at 1936.

Further, the impediment to Wilson’s §2241

petition is not that it was not timely-filed; it is that he does not meet the

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substantive Davenport criteria for bringing a §2241 petition.
Conclusion
Joseph Wilson’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2241 (Doc. 1) is DENIED.
This action is DISMISSED WITH PREJUDICE.
The Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2014.09.26
08:12:48 -05'00'

DATE: September 26, 2014

Chief Judge
United States District Court

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