BARBOUR v. KRUEGER
ENTRY Dismissing Action and Directing Entry of Final Judgment - Based on the foregoing, Barbour 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 w rit of habeas corpus is denied. Because there is a collateral challenge pending in the trial court, the dismissal of the present action shall be without prejudice. Judgment consistent with this Entry shall now issue (SEE ENTRY). Copy to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 8/9/2017.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JEFFREY KRUEGER, Warden,
) Case No. 2:17-cv-00187-JMS-MJD
Entry Dismissing Action and Directing Entry of Final Judgment
Johnny Barbour seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). His
petition for writ of habeas corpus is denied.
On January 15, 2013, Barbour pled guilty to possessing ammunition as a convicted felon—
a violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced under the Armed Career Criminal
Act, 18 U.S.C. § 924(e). That enhancement was reversed on appeal. See United States v. Barbour,
750 F.3d 535 (6th Cir. 2014). On remand, Barbour was sentenced to 87 months’ imprisonment.
That disposition was affirmed in United States v. Barbour, 629 F. App’x 727 (6th Cir. 2015).
Barbour is currently seeking relief via 28 U.S.C. § 2255 under Johnson v. United States, 135 S.
Ct. 2551, 2557 (2015). That challenge was docketed in the trial court as No. 1:16-cv-00438-CLC,
although the development of the action is chronicled in the underlying criminal action, No. 1:12CR-00124-1.
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). Barbour, however, challenges
his sentence and seeks habeas corpus relief pursuant to 28 U.S.C. § 2241(c)(3). “A federal prisoner
may use a § 2241 petition for a writ of habeas corpus to attack his conviction or sentence only if §
2255 is ‘inadequate or ineffective.’” Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (quoting
28 U.S.C. § 2255(e)). Whether § 2255 is inadequate or ineffective depends on “whether it allows
the petitioner ‘a reasonable opportunity to obtain a reliable judicial determination of the
fundamental legality of his conviction and sentence.’” Webster v. Daniels, 784 F.3d 1123, 1136
(7th Cir. 2015) (en banc)(quoting In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998)). To properly
invoke the Savings Clause of 28 U.S.C. § 2255(e), a petitioner is required to show “something
more than a lack of success with a section 2255 motion,” i.e., “some kind of structural problem
with section 2255.” Id. The Court of Appeals for the Seventh Circuit has identified the three
requirements to invoke the Savings Clause:
In the wake of Davenport, we distilled that holding into a three‐part test: a
petitioner who seeks to invoke the savings clause of § 2255(e) in order to proceed
under § 2241 must establish: (1) that he relies on “not a constitutional case, but a
statutory‐interpretation case, so [that he] could not have invoked it by means of a
second or successive section 2255 motion,” (2) that the new rule applies
retroactively to cases on collateral review and could not have been invoked in his
earlier proceeding, and (3) that the error is “grave enough . . . to be deemed a
miscarriage of justice corrigible therefore in a habeas corpus proceeding,” such as
one resulting in “a conviction for a crime of which he was innocent.” Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012); see also Davenport, 147 F.3d at 611 (referencing
the procedure as one to correct “a fundamental defect” in the conviction or
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016), cert. denied sub nom. Montana v. Werlich,
137 S. Ct. 1813 (2017). “The petitioner bears the burden of coming forward with evidence
affirmatively showing the inadequacy or ineffectiveness of the § 2255 remedy.”
The expanded record here shows without doubt that Barbour is not entitled to seek habeas
relief via the savings clause of § 2255(e). This is because he filed a timely 28 U.S.C. § 2255 in
the trial court asserting the same claim which is asserted here. The United States has defended
that motion on the merits, not because of some asserted jurisdictional or procedural deficiency.
The present action is Barbour’s effort at a second bite at the post-conviction apple while the first
bite is still in progress.
Based on the foregoing, Barbour 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 denied. Because there is a collateral challenge pending in the trial court, the
dismissal of the present action shall be without prejudice.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
P.O. BOX 33
TERRE HAUTE, IN 47808
Brian L. Reitz
UNITED STATES ATTORNEY'S OFFICE
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
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