Morris, Montrell v. Werlinger, R.

Filing 13

Transmission of Notice of Appeal, Docketing Statement, Appeal Information Sheet, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 9 Notice of Appeal. (Attachments: # 1 Information sheet, # 2 Docketing Statement, # 3 Notice regarding transcripts, # 4 Order, # 5 Judgment, # 6 Order, # 7 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MONTRELL K. MORRIS,
Petitioner,

OPINION AND ORDER

v.
13-cv-327-wmc
R. WERLINGER, WARDEN,
FCI-OXFORD,
Respondent.

MONTRELL K. MORRIS,
Petitioner,

OPINION AND ORDER

v.
13-cv-444-wmc
R. WERLINGER, WARDEN,
FCI-OXFORD,
Respondent.

Petitioner Montrell K. Morris is currently in the custody of the United States
Bureau of Prisons at the Federal Correctional Institution in Oxford, Wisconsin. He has
filed two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking
relief from his conviction and sentence.

For reasons set forth briefly below, both

petitions must be dismissed for lack of jurisdiction.

FACTS
The following facts are taken from the pleadings and the electronic docket in
Morris‟ underlying state and federal criminal cases:

In March 2011, Morris pled guilty to charges of possession with intent to
distribute cocaine and resisting or obstructing an officer in Milwaukee County Case No.
10CF4781. The circuit court sentenced Morris to 15 months‟ imprisonment in that case.
In August 2011, a grand jury in the Eastern District of Wisconsin returned a onecount indictment against Morris, charging him with unlawful possession of a firearm as a
felon in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). See United States v. Morris, Case
No. 11-cr-175 (E.D. Wis.). On October 26, 2011, Morris pled guilty to that indictment.
On February 24, 2012, the district court imposed a 46-month term of federal
imprisonment to be served concurrently with his 15-month state sentence. Morris did
not appeal.
On February 25, 2013, Morris filed a motion pursuant to 28 U.S.C. § 2255,
asking the district court to vacate, set aside, or correct his sentence in Case No. 11-cr175. Morris argued that he was entitled to relief for the following reasons: (1) the trial
court lacked jurisdiction pursuant to the Tenth Amendment; (2) there was insufficient
evidence to prove that the firearm travelled in interstate commerce pursuant to 18 U.S.C.
§ 922(g)(1); and (3) defense counsel provided ineffective assistance.

Noting that a

§ 2255 petition can neither substitute for a direct appeal nor advance arguments that
could have been made in that appeal, the district court denied relief and a certificate of
appealability on February 8, 2013. See Morris v. United States, 13-cv-202 (E.D. Wis.).
Morris now seeks a writ of habeas corpus from this court under 28 U.S.C. § 2241,
arguing that his conviction and sentence are invalid. In the petition that he filed in the
Western District of Wisconsin Case No. 13-cv-327-wmc, Morris argues that he is
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entitled to relief because his conviction in the Eastern District for unlawful possession of
a firearm violated “the ex post facto law prohibition of Article 1, § 9, cl. 3 of the
Constitution” and infringed upon “the State of Wisconsin‟s Tenth Amendment criminal
sovereign jurisdiction to prosecute local offenses,” as outlined in Bond v. United States, —
U.S. —, 131 S. Ct. 2355 (2011). In the petition that he filed in the Western District of
Wisconsin Case No. 13-cv-444-wmc, Morris contends that he is entitled to relief from his
conviction and sentence in the Eastern District because an error in the Presentence
Report caused that district court to miscalculate his criminal history category.

OPINION
Morris seeks judicial review of his criminal conviction and sentence under 28
U.S.C. § 2241(c)(3), which authorizes a writ of habeas corpus where a prisoner can show
that he is “in custody in violation of the Constitution or laws or treaties of the United
States[.]” Review under § 2241 is usually reserved for attacking the execution, not the
imposition, of a sentence. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). By
contrast, “[28 U.S.C.] § 2255 is the exclusive means for a federal prisoner to attack his
conviction [or sentence].” Hill v. Werlinger, 695 F.3d 644, 647 (7th Cir. 2012); see also
Carnine v. United States, 974 F.2d 924, 927 (7th Cir. 1992) (comparing the remedies
available under §§ 2241, 2255).
Because Morris argues that his current sentence should be set aside or vacated, his
petition is governed by § 2255. See Hill, 695 F.3d at 647. As a rule, motions of this kind
must be filed with the sentencing court. See 28 U.S.C. § 2255(a); Longbehn v. United

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States, 169 F.3d 1082, 1083 (7th Cir. 1999). In a “narrow class of cases,” a federal
prisoner may proceed under § 2241 if he can show that his claims fit within the “savings
clause” found in 28 U.S.C. § 2255(e). Hill, 695 F.3d at 648; Kramer, 347 F.3d at 217
(citation omitted). To fit within that narrow exception, however, a prisoner must show
that “the remedy by motion [under § 2255] is inadequate or ineffective to test the
legality of his detention.” Id. Morris falls well short of that showing.
The Seventh Circuit has found that § 2255 is inadequate for purposes of the
savings clause when the statutory prohibition on second or successive motions would
otherwise “prevent a prisoner from obtaining review of a legal theory that „establishes the
petitioner‟s actual innocence.‟” Kramer, 347 F.3d at 217 (quoting Taylor v. Gilkey, 314
F.3d 832, 835 (7th Cir. 2002)). To make this showing, a prisoner must demonstrate
that “the legal theory he advances relies on a change in law that both postdates his first
§ 2255 motion . . . and „eludes the permission in [§] 2255 for successive motions.‟”
Kramer, 347 F.3d at 217 (quoting Davenport, 147 F.3d at 611). None of the claims raised
by Morris fit within that category.
On the contrary, all of the legal theories presented in the pending § 2241 petition
were available at the time Morris filed his initial motion to vacate under § 2255. In fact,
the sentencing court dismissed Morris‟s § 2255 motion because his legal theories could
have, but were not, presented on direct appeal. See Morris v. United States, 13-cv-202
(E.D. Wis. March 8, 2013).

Under these circumstances, Morris does not show that

§ 2255 was inadequate or ineffective to test the legality of his detention. See Hill, 695
F.3d at 649; see also Taylor, 314 F.3d at 835 (observing that a petitioner‟s prior failure to
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present a constitutional claim or “theory that has long been appropriate for collateral
review does not render § 2255 „inadequate or ineffective‟”).
Because Morris does not fit within the savings clause found in § 2255(e), he may
not proceed under § 2241 and both of his pending petitions for a writ of habeas corpus
must be dismissed for lack of jurisdiction.

ORDER
IT IS ORDERED that both of the petitions filed by Montrell K. Morris for a writ
of habeas corpus under 28 U.S.C. § 2241 are DISMISSED for lack of jurisdiction.
Entered this 19th day of December, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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