White v. Holinka

Filing 3

ORDER directing petitioner to file a supplement the petition by 12/16/09. Signed by Chief Judge Barbara B. Crabb on 11/25/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------A N T H O N Y WHITE, Petitioner, 0 9 - cv -6 6 4 - b b c v. C A R O L HOLINKA, Warden, R espo nd ent. --------------------------------------------P e titio n er Anthony White, a prisoner at the Federal Correctional Institution in O xford, Wisconsin, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22 41 to challenge an enhanced sentence that was imposed on him by the United States D istrict Court for the Eastern District of Wisconsin. He has paid the $5 filing fee. P etitio n er contends that his sentence should not have been enhanced for possession of a firearm because there was no evidence that he possessed a firearm or that he knew his co-con spirator possessed a firearm. I cannot consider the merits of petitioner's petition because he has not shown why § 2241 is the proper vehicle for bringing his claim. Ordinarily, a federal prisoner seeking to attack his conviction or sentence must do so on direct appeal or in a motion filed under 28 O PIN IO N AND ORDER

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U .S .C . § 2255. Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). Relief under § 2241 is available only when a motion under § 2255 is "inadequate or ineffective to test the legality of [the prisoner's] detention," 28 U.S.C. § 2255(e), which means that "a structural problem in § 2255 forecloses even one round of effective collateral review" and "the claim being foreclosed is one of actual innocence." Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002). Further, a prisoner may not show that a motion under § 2255 is "ineffective" simply because that remedy is no longer available, either because the deadline for filing such a motion has passed or because he has filed a previous motion under § 2255 and cannot satisfy the req uirem en ts for filing a second motion under § 2255(h). Unthank v. Jett, 549 F.3d 534, 5 3 5 -3 6 (7th Cir. 2008) (rejecting argument that "whenever § 2255(h) closes the door to a renew ed challenge under § 2255, then § 2255(e) must open the door to a challenge under § 2241"); Morales v. Bezy, 499 F.3d 668, 672 (7th Cir. 2007) ("A prisoner cannot be p e rm i tte d to lever his way into section 2241 by making his section 2255 remedy i n a d e q u a t e ." ) A lth ou gh petitioner indicates that his claim is one of "actual innocence," he does not attem pt to identify any structural problem in § 2255 that prevented collateral review of his claim s under that provision. Accordingly, I will give petitioner an opportunity to correct this defect in his petition. If he fails to do so, his petition will be dismissed.

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OR DER IT IS ORDERED that petitioner Anthony White may have until December 16, 2009, to supplement to his petition showing why 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 December 16, 2009, I will deny the petition for his failure to show that he is in custody in violation of federal law. E n tered this 25t h day of November, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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