United States District Court, W.D. Wisconsin
OPINION & ORDER
JAMES D. PETERSON District Judge
Petitioner, pro se prisoner Joseph Meling, is in the custody of the federal Bureau of Prisons (BOP). Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his 1993 conviction in the United States District Court for the Western District of Washington. Petitioner contends that recent Supreme Court precedent renders his sentence and continued detention unlawful because a jury did not find the facts that petitioner’s sentencing judge used to increase petitioner’s sentence. I conclude that petitioner cannot proceed with these claims under § 2241.
I draw the following background from the petition and from publically available information about petitioner’s underlying criminal convictions.
Petitioner is serving a term of life imprisonment. He is currently incarcerated at FCI-Oxford, which is within the Western District of Wisconsin.
In 1992, the United States charged petitioner with one count of product tampering that resulted in great bodily injury, two counts of product tampering that resulted in death, three counts of product tampering, two counts of perjury, and three counts of mail fraud. These criminal charges arose out of petitioner tampering with packages of Sudafed by adding cyanide to the pills. The United States alleged that petitioner’s goal was to give the altered medication to his wife, cause her death, collect the life insurance proceeds, and blame everything on an anonymous tamperer. Petitioner did not succeed in killing his wife-she recovered after being taken to the hospital. But two other victims died after ingesting the altered pills.
A jury found petitioner guilty on all 11 counts, and the district court sentenced petitioner on June 8, 1993. At issue here are the two counts of product tampering resulting in death. Under USSG § 2N1.1, the base offense level for those two convictions depended on whether petitioner had caused the deaths of his victims “intentionally or knowingly, ” as opposed to causing the deaths with some lesser level of culpability. The sentencing judge determined that petitioner had intentionally or knowingly caused the deaths of his victims, and so she cross-referenced § 2A1.1 (the guideline for first-degree murder) instead of § 2A1.2 (the guideline for second-degree murder). The resulting base offense level yielded a guideline imprisonment range of life. Because the guidelines were mandatory at the time, the judge sentenced petitioner to life in prison without the possibility of parole. Petitioner appealed to the Ninth Circuit, which affirmed his conviction and sentence. The Supreme Court denied petitioner’s petition for certiorari.
Petitioner returned to the district court and filed a motion for a new trial under Federal Rule of Criminal Procedure 33, which the court denied. The Ninth Circuit affirmed that denial.
In 1999, petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. His sentencing court dismissed the petition as untimely and refused to issue a certificate of appealability. The Ninth Circuit likewise denied petitioner’s request for a certificate of appealability. Sometime later, petitioner filed another motion in the district court, labeling it “NOT a Second or Successive § 2255.” Dkt. 2, at 5. His sentencing court disagreed with petitioner’s label and dismissed the motion as an unauthorized second or successive motion under § 2255. In 2014, petitioner filed a motion in the Ninth Circuit seeking an order authorizing the district court to consider a second or successive motion under § 2255 based on the Supreme Court’s decisions in Burrage v. United States, 134 S.Ct. 881 (2014), and Alleyne v. United States, 133 S.Ct. 2151 (2013). The Ninth Circuit denied petitioner’s motion.
On November 21, 2015, petitioner applied to this court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241.
Petitioner is challenging his sentencing court’s application of USSG § 2A1.1. He contends that a jury-not a judge-needed to find the facts necessary to apply the guideline. Specifically, petitioner argues that the sentencing judge engaged in impermissible fact-finding when she concluded that petitioner intentionally or knowingly caused the deaths of two of his victims. Applying § 2A1.1 yielded a guideline range of life imprisonment. Because the guidelines were mandatory at the time, this meant that petitioner was guaranteed to receive a life sentence. Petitioner contends that recent Supreme Court precedent renders his sentence unconstitutional because the sentencing judge, and not a jury, found facts that necessarily increased his punishment.
To collaterally attack a sentence, federal prisoners must ordinarily file a petition under § 2255. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). But a federal prisoner “may petition under section 2241 instead if his section 2255 remedy is ‘inadequate or ineffective to test the legality of his detention.’” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012) (quoting 28 U.S.C. § 2255(e)). The Seventh Circuit has established three conditions that must be present for the “inadequate or ineffective” exception to apply. First, the petitioner must be relying on a statutory-interpretation case-rather than on a constitutional case- because § 2255 offers relief to prisoners who rely on constitutional cases. Second, the petitioner must be relying on a retroactive decision that he could not have invoked in his first § 2255 motion. Third, the sentence enhancement must have been a grave enough error to be deemed a miscarriage of justice. Light v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014), cert. denied, 135 S.Ct. 970 (2015); In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998). The first and second conditions are not present in this case, which means that petitioner cannot proceed under § 2241.
As to the first condition, Alleyne is not statutory-interpretation case: it “establishes a new rule of constitutional law.” Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013); see also Lott v. Walton, No. 13-cv-833, 2014 WL 29626, at *3 (S.D. Ill. Jan. 3, 2014), aff’d, (May 2, 2014) (“Because Alleyne is a constitutional case, not a statutory interpretation case, Lott does not meet the first of the Davenport requirements and he cannot bring his claim in a petition under § 2241.”). Indeed, petitioner himself acknowledges that Alleyne is a constitutional case rather than a statutory case. Dkt. 2, at 13 (“The Alleyne [C]ourt illustrates and clarifies the original meaning of the ...