X v. KRUEGER
ENTRY Dismissing Action and Directing Entry of Final Judgment - For the reasons explained in this Entry, this is an appropriate case for such a disposition. X 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. Judgment consistent with this Entry shall now issue (SEE ENTRY). Copy to Petitioner via US Mail. Signed by Judge Larry J. McKinney on 8/25/2017.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
J. E. KRUEGER Warden,
Entry Dismissing Action and Directing Entry of Final Judgment
Claude X, Reg. No. 212059-045, is confined in this District and seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). His petition for writ of habeas corpus
X was sentenced to terms of imprisonment totaling, in the aggregate, life plus 60
months, on November 4, 2010, in the United States District Court for the Western District
of Missouri, in case number 6:08-cr-3109-MDH-1. Specifically, X was convicted at trial of:
conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 846, and
841(a)(1) and (b)(1)(A), (B), (C), and (D); four counts of possession with intent to distribute
a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and (D); five counts
of distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C);
using a firearm during and in relation to drug trafficking crimes, in violation of 18 U.S.C. §
924(c)(1)(A); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §
After his direct appeal was completed, X filed a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. The trial court wrote:
In his first accusation of ineffectiveness of counsel on appeal, Movant
claims that Mr. Lewis was ineffective for failing “to raise and argue the fact
that the trial court erred when it refused to sentence the petitioner under the
Fair Sentencing Act that went in effect on August 3, 2010.” Movant’s case
falls into a unique class in that he was convicted of a conspiracy alleged to
have occurred before the enactment of the Fair Sentencing Act, but was
sentenced thereafter, on November 4, 2010. “[T]he Fair Sentencing Act’s
more lenient penalties” do “apply to offenders who committed [cocaine
base] crimes before August 3, 2010, but were sentenced after that date.”
Dorsey v. United States, 132 S.Ct. 2321, 2324 (2012). Movant was not
prejudiced, however, because this Court specifically held that the
conspiracy of which Movant was a part involved more than 500 grams of
cocaine base, above the 280-gram threshold that applied after August 3,
2010. Thus, Movant’s statutory minimum was unaffected by the changes in
the drug quantity amounts, and his counsel was not ineffective in not raising
this issue on appeal. Furthermore, Movant cannot show that he suffered
X v. United States, 6:12-cv-3480-GAF, docket number 24 at pages 6-7 (June 26, 2013).
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). X,
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.”
Smith v. Warden, FCC Coleman – Low, 503 F. App’x 763, 765 (11th Cir. 2013) (citation
In this action, X raises two related grounds for relief. First, he argues that he was
denied due process when the trial court refused to apply the “Fair Sentencing Act of 2010”
to his case. Second, X argues that the Fair Sentencing Act of 2010 removed him from
qualifying as a career offender under 21 U.S.C. § 841(b)(1). Both of these issues were
raised during X’s motion pursuant to 28 U.S.C. § 2255, and both were rejected by the
sentencing court. “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). X had that opportunity and used it. He is not entitled to more.
“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).
For the reasons explained in this Entry, this is an appropriate case for such a disposition.
X 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.
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
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
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