Walls v. Holinka et al

Filing 8

ORDER that petitioner may have until August 20, 2009, to supplement his petition to show that a motion under 28 U.S.C. § 2255 would be inadequate. Signed by Chief Judge Barbara B. Crabb on 8/7/2009. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------FEL IX WALLS, Petitioner, 0 9 -c v -4 3 0 -s lc 1 v. W AR D EN CAROL HOLINKA of FCI Oxford an d other ARTICLE II SWORN OFFICIAL[s] of the DEPARTMENT OF JUSTICE, known and unknown. R espo nd ents. --------------------------------------------In an order entered July 23, 2009, I considered petitioner Felix Walls's petition for w r it of habeas corpus and explained that, although such writs generally arise pursuant to 28 U .S.C. § 2241, the general statute authorizing writs of habeas corpus, his claim involved an attack on his conviction or sentence, which is generally actionable only through § 2255 u n le ss some structural problem in § 2255 makes it unavailable to petitioner. Because petition er did not identify any such structural problem, I gave him an opportunity to ORDER

Although this case has been assigned to Magistrate Judge Stephen Crocker, it is too early in the case for the parties to have consented to his jurisdiction. Therefore, for the purp ose of issuing this order only, I am assuming jurisdiction over this case.

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s up p le m en t his petition.

(In addition, I gave him an opportunity to verify that the

statem ents in his petition are being made under penalty of perjury; he has provided the requ ired verification.) Petitioner has responded to the order by filing a "motion for indefinite statements," w hich appears to be a challenge to the conclusion that his petition for writ of habeas corpus m ust follow the rules of § 2241 and § 2255. In particular, petitioner contends that he should be entitled to proceed directly under the Constitution instead of by some statutory m echan ism , citing Article 1, Section 9, Clause 2 of the Constitution (the suspension clause). T o the extent plaintiff is arguing that he may proceed directly under the Constitution, he is m istak en . The suspension clause does not provide a separate cause of action for writs of h ab eas corpus; it simply prohibits Congress from suspending the writ. Sections 2241 and 22 55 are the statutory vehicles for bringing writs of habeas corpus in petitioner's circum stances. Therefore, petitioner must comply with their limitations. A s to petitioner's suggestion that sections 2241 and 2255 violate the suspension clause by limiting his opportunities to challenge his conviction, the Court of Appeals for the S even th Circuit has this to say: "There is no constitutional entitlement to post-judgment collateral review by the inferior federal courts, let alone to unending rounds of such review." B enefiel v. Davis, 403 F.3d 825, 827 (7th Cir. 2005). If petitioner wants to challenge his co nvictio n or sentence, he must either proceed under § 2255 (which is probably unavailable

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to him) or show that structural problems in § 2255 make it unavailable to him. A cco rd in g to petitioner, he has declined to provide information regarding why § 2255 is unavailable because he needed to first know why he could not proceed directly under the Co nstitution. It is not clear why that is so. Nonetheless, I will give petitioner one more op po rtunity to explain why § 2255 is unavailable. He may have until August 20, 2009 in w hich to supplement his petition to show that a motion under § 2255 would be "inadequate o r ineffective." If, by August 20, petitioner has failed to supplement his complaint, his petition will be denied.

ORDER IT IS ORDERED that petitioner Felix Walls may have until August 20, 2009, to supplem ent his petition to show that a motion under 28 U.S.C. § 2255 would be "inadequate or ineffective to test the legality of [petitioner's] detention." If petitioner fails to respond by August 20, 2009, I will deny the petition for his failure to show that he is in custo dy in violation of federal law. E n tered this 7th day of August, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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