BROADNAX v. OLIVER

Filing 2

ENTRY Discussing Petition for Writ of Habeas Corpus - 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 mus t be dismissed. 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 a writ of habeas corpus is therefore denied. Judgment consistent with this Entry shall now issue. Signed by Judge Jane Magnus-Stinson on 7/19/2012. (copy to Petitioner via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

GREG BROADNAX,
Petitioner,

vs.
JOHN OLIVER,

Respondent.

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2:12-cv-161-JMS-MJD

Entry Discussing Petition for Writ of Habeas Corpus
Greg Broadnax 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
Northern District of Indiana. See United States v. Broadnax, 536 F.3d 695 (7th Cir.
2008).
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. § 2241
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
States, 210 F.3d 770 (7th Cir. 2000).
3.
Broadnax was convicted of a drug offense. He now contends that he is
“actually innocent” because he stands convicted of a “nonexistent offense.” Broadnax
relies on the U. S. Supreme Court's recent decision in United States v. DePierre, 131
S. Ct. 2225 (2011), as authority for his argument that he has not been convicted of a
federal offense.
4.
The question presented in DePierre was whether the text of 21 U.S.C. §
841(b)(1)(A)(iii), wherein 50 grams or more of “cocaine base” triggers the mandatory
minimum ten-year sentence, encompasses solely crack cocaine or any form of
cocaine in its “basic form.” The Supreme Court upheld the First Circuit Court of
Appeals’ decision that “cocaine base” refers to cocaine in its “basic form,” and not
solely crack cocaine. DePierre, 131 S. Ct. at 2237. Thus, it is now clear that “the
term ‘cocaine base’ as used in § 841(b)(1) means not just ‘crack cocaine,’ but cocaine
in its chemically base form.” Id. Nothing in DePierre, however, decriminalizes the
conduct with which Broadnax was charged or of which he stands convicted.
5.
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
a writ of habeas corpus is therefore denied. Judgment consistent with this Entry
shall now issue.
IT IS SO ORDERED.

07/19/2012
Date: __________________
Distribution:
Greg Broadnax
Reg. No. 08660-027
Terre Haute U.S. Penitentiary
P.O. Box 33
Terre Haute, IN 47808

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana