Myrieckes v. Holinka

Filing 2

ORDER denying 1 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255(e). Signed by Chief Judge Barbara B. Crabb on 11/23/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------ER IC MYRIECKES, Petitioner, 0 9 -c v -6 7 7 -s lc 1 v. C . HOLINKA, Warden. R espo nd ent. --------------------------------------------P etitio n er Eric Myrieckes has filed a petition for a writ of habeas corpus under 28 U .S.C . § 2241 and has paid the $5 filing fee. Petitioner challenges the validity of his sen ten ce on the grounds that the sentencing court would have deviated from the sentencing gu id elin es but felt constrained by them and would have attributed a smaller quantity of drugs to petitioner had petitioner's lawyer raised an objection when the issue came up. I will dism iss the petition for a writ of habeas corpus because § 2241 is not available under the circum stances petitioner presents. ORDER

While this court has a judicial vacancy, it is assigning 50% of its caseload autom atically to Magistrate Judge Stephen Crocker. For the purpose of issuing this order on ly, I am assuming jurisdiction over this case.

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A federal prisoner seeking to attack his conviction or sentence must do so on direct app eal or in a motion filed under 28 U.S.C. § 2255, except in limited circumstances. Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). Relief under § 2241 is available only when a m otio n under § 2255 is "inadequate or ineffective to test the legality of [the prisoner's] d eten tio n ," 28 U.S.C. § 2255(e). This requires a showing that "a structural problem in § 22 55 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). P etitio n er states that he was sentenced in the United States District Court "of Pen nsylvania." A review of online court records shows that he was sentenced in the United States District Court for the Western District of Pennsylvania. The docket sheet shows that petition er has attempted to challenge his conviction multiple times using § 2255. United S tates v. Andrews, et al, case no. 00-cr-14-KRG-3, dkts. ##124, 133, 136, 137, 139, 140. N o w he tries to bring a challenge under § 2241. Petition er recognizes the limitations that § 2241 places on the pursuit of challenges to the validity of sentences, but contends that he could not use § 2255 because his argument w as foreclosed at the time that § 2255 was available. The Court of Appeals for the Seventh C ircu it has held that the circumstances petitioner alleges do not entitle him to a new § 2255 proceeding. In Unthank v. Jett, 549 F.3d 534 (7th Cir. 2008), the petitioner argued that th e disposition of his first § 2255 motion had been erroneous, as shown by an intervening

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decision of the United States Supreme Court. Maybe so, said the court of appeals, but the S u prem e Court's decision "did not, however, create a new and retroactive rule of con stitution al law; at most it just showed that an error had been made. It did not permit a new collateral attack under § 2255(h)." Id. at 535(citing Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002)). Petitioner might be able to show that he is eligible for a hearing under § 2255(e) if h e could show that he is actually innocent, as he claims. His own averments contradict any su ch claim. He admits having entered a plea of guilty to the underlying crime and does not su ggest that he was innocent of that crime. Instead, he asserts only that he is "innocent" of the particular sentence he received. However, a claim that a "sentence is too high" is not a claim of innocence, Unthank, 549 F.3d at 536, except perhaps when the petitioner is claim ing "innocence" of a status under a statute that requires a sentence enhancement. In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998). Under Davenport, if petitioner were challengin g his designation as a career offender, § 2241 might be available in limited circum stances that are not present in this case. Although petitioner says he was classified as a career offender, he does not say that the classification was erroneous. Instead, he contends that whatever the classification, the sentencing court should have felt free to depart dow nw ard from the sentencing guidelines. Under these circumstances, it is Unthank that applies, not Davenport. Because petitioner has not shown that his § 2255 remedy was

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inad equ ate or ineffective to test the legality of his detention, this court lacks jurisdiction to hear what is a successive petition.

ORDER IT IS ORDERED that the petition for a writ of habeas corpus filed by Eric Myrieckes is DENIED under 28 U.S.C. § 2255(e) because petitioner has not shown that he is autho rized to apply for relief under 28 U.S.C. § 2241 or that this court has jurisdiction to hear what is a successive petition as defined in 28 U.S.C. § 2255(h). Entered this 23r d day of November, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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