DEMBRY v. OLIVER

Filing 19

ENTRY Discussing Petition for Writ of Habeas Corpus - petition is denied. Judgment consistent with this Entry shall now issue. (Petitioner served via US Mail) Signed by Judge William T. Lawrence on 3/7/2012.(SMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EDWARD KEITH DEMBRY,
vs.

Petitioner,

WARDEN JOHN OLIVER,
Respondent.

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2:11-cv-210-WTL-WGH

Entry Discussing Petition for Writ of Habeas Corpus
Edward Keith Dembry is confined in this District and seeks a writ of habeas
corpus with respect to his conviction entered in the United States District Court for
the
Eastern District of North Carolina.
After this action was docketed, Dembry was given a period of time in which to
show cause why this action can proceed under 28 U.S.C. § 2241. He has responded
with his filing of February 21, 2012.
Whereupon the court, having considered the petition for a writ of habeas
corpus and being duly advised, now finds that the relief sought by the petitioner
must be denied and that the action must be dismissed. This conclusion rests on
the following facts and circumstances:
1.
A 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). A § 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. § 28
U.S.C. § 2241(c)(3) only if § 2255 “would not . . . be[ ] adequate to test the legality of
the conviction and sentence.” Melton v. United States, 359 F.3d 855, 858 (7th Cir.
2004); 28 U.S.C. § 2255(e).

2.
A remedy via § 2255 is “inadequate or ineffective to test the legality of
[the] detention” when a legal theory that could not have been presented under §
2255 establishes the petitioner's actual innocence. In re Davenport, 147 F.3d 605
(7th Cir. 1998). “A procedure for post-conviction relief can fairly be 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.” Id. at 611. It is the inmate's
burden to show that a § 2241 remedy is the proper one. Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001). “The essential point is that a prisoner is entitled to
one unencumbered opportunity to receive a decision on the merits.” Potts v. United
tates, 210 F.3d 770 (7th Cir. 2000).
3.
Dembry was convicted in the United States District Court for the
Southern District of Iowa of being a felon in possession of ammunition. His
conviction was affirmed on appeal in United States v. Dembry, 535 F.3d 798 (8th Cir.
2008). He seeks habeas corpus relief in this action based on his claim that his
enhanced sentence as an armed career criminal was unwarranted because one of
the convictions used to support that enhancement was uncounseled. This claim was
presented in an action brought pursuant to 28 U.S.C. § 2255, which was filed in the
trial court on September 15, 2009, which was docketed as No. 4:09-cv-0358-JAJ, and
which was summarily dismissed pursuant to Rule 4(b) of the Rules Governing
Section 2255 Proceedings in the United States District Courts on October 19, 2009.
In dismissing the § 2255 motion, the trial court noted that “[d]uring Dembry’s
sentencing, the court determined that Dembry’s prior robbery convictions were
counseled. . . . Therefore, Dembry’s claim that the district court erred by using an
allegedly uncounseled robbery conviction for purposes of enhancing Dembry’s
sentence fails.”
4.
Dembry offers no reason in his petition for a writ of habeas corpus or
his supplement which persuades this court that a different resolution--or even
further adjudication--of claim is now warranted.
5.
Federal 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). This is an appropriate case for such a disposition for precisely the
reasons explained above. That is, the petitioner has sought relief pursuant to 28
U.S.C. § 2241 under circumstances which do not permit or justify the use of that
remedy. His petition for s writ of habeas corpus is denied. Judgment consistent
with this Entry shall now issue.
IT IS SO ORDERED.

03/07/2012
Date: _________________

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana