United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY, District Judge
Eddie Baker, Jr., is currently in custody of the United
States Bureau of Prisons at the Federal Correctional
Institution in Oxford, Wisconsin (“FCI Oxford”).
Before the court is his petition for a writ of habeas corpus
under 28 U.S.C. § 2241. The petition is before the court
for preliminary review under Rule 4, which may also be
applied to habeas petitions not brought under 28 U.S.C.
§ 2254. After considering the pleadings and his
memorandum in support, Baker's motion will be dismissed
for the reasons set forth briefly below.
is serving concurrent sentences for state and federal
convictions. Milwaukee County imposed a ten-year sentence for
a conviction of first-degree reckless endangerment of safety
while armed with a dangerous weapon, while the Eastern
District of Wisconsin imposed a concurrent 327-month sentence
for a conviction of unlawful possession of a firearm as a
September 29, 2004, Baker filed a motion in the Eastern
District under 28 U.S.C. § 2255, asking the sentencing
court to vacate, set aside, or correct his sentence. Baker
argued that he was entitled to relief for the following
reasons: (1) the trial court lacked subject matter
jurisdiction to adjudicate his case pursuant to 18 U.S.C.
§ 921(a)(20); (2) the trial court erred by directing a
partial verdict against him; (3) the prosecutor engaged in
misconduct; (4) the charges violated the Double Jeopardy
Clause; (5) there was insufficient evidence to prove that the
firearm travelled in interstate commerce; (6) his sentence
violated the Ex Post Facto Clause; and (7) defense counsel
provided ineffective assistance.
that Baker repeated several claims that had been adjudicated
on direct appeal and that his remaining claims were barred by
the doctrine of procedural default, the sentencing court
denied relief on November 4, 2005. See Baker v. United
States, 04-cv-0938 (E.D. Wis.). The Seventh Circuit also
denied Baker's request for a certificate of
appealability, see Baker v. United States, No.
05-4435 (7th Cir. March 2, 2006), and the United States
Supreme Court denied his petition for a writ of certiorari
from that decision. See Baker v. United States, 548
U.S. 917 (2006).
gist of Baker's pending petition is that he does not
believe that the federal court had jurisdiction to convict
him of a crime. He lists three constitutional issues as his
grounds for relief under § 2241: (1) whether the federal
government lacked jurisdiction to enforce a statute that is
applied as either an “ex post facto law” or a
“bill of attainder”; (2) whether the federal
government can take jurisdiction in violation of the Tenth
Amendment; and (3) whether the Constitution permits the
federal government to take away the Second Amendment rights
of the people.
petition is governed by the Antiterrorism and Effective Death
Penalty Act (the “AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214, which was enacted on April 24, 1996. Under
the AEDPA, any “second or successive application”
for habeas relief must be authorized by the court of appeals.
See 28 U.S.C. § 2244(b)(3)(A). Numerically,
second filings trigger the prohibition against
second-or-successive applications “if they follow a
filing that ‘counts' as the prisoner's first
(and only) opportunity for collateral review.”
Vitrano v. United States, 643 F.3d 229, 233 (7th
Cir. 2011) (citation omitted). Baker's 2004 petition
counts as his first opportunity for collateral review.
See Altman v. Benik, 337 F.3d 764, 766 (7th Cir.
2003) (petitions that “have been denied based on a
procedural default … do count as prior petitions
because the petitioner is incapable of curing the defect
underlying the district court's judgment”).
Accordingly, his pending petition qualifies as a second or
successive application for habeas relief.
a petition under § 2241 does not face the successive
petition bar, Baker's § 2241 petition is really a
§ 2255 claim in sheep's clothing. A defendant has
limited avenues of relief from a federal conviction once it
has become final. After a defendant has completed a direct
appeal, or his time to appeal has expired, a motion under 28
U.S.C. § 2255 is generally the “exclusive”
means for a federal prisoner to challenge the validity or
imposition of his sentence. Hill v. Werlinger, 695
F.3d 644, 647 (7th Cir. 2012). In a “narrow class of
cases, ” a federal prisoner may challenge his
conviction and sentence under § 2241, but only if he can
show that his claims fit within the “savings
clause” found at 28 U.S.C. § 2255(e). Id.
at 648; Kramer v. Olson, 347 F.3d 214, 217 (7th Cir.
2003); see also Carnine v. United States, 974 F.2d
924, 927 (7th Cir. 1992) (comparing the remedies available
under §§ 2241, 2255). The “savings
clause” authorizes a § 2241 petition where the
remedy under § 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C.
order to fit within the savings clause, the Seventh Circuit
has explained that a petitioner must generally meet three
conditions. Brown v. Caraway, 719 F.3d 583, 586 (7th
Cir. 2013). First, he must show that he relies on a new case
of statutory interpretation. Id. Second, he must
show that the case applies retroactively. Id. Third,
he must demonstrate that there has been a “fundamental
defect” in his conviction or sentence that is grave
enough to be deemed a miscarriage of justice. Id.;
see also Brown v. Rios, 696 F.3d 638, 640 (7th Cir.
2012). Recently, in Webster v. Daniels, 784 F.3d
1123 (7th Cir. 2015), the Seventh Circuit reemphasized that
“there must be some kind of structural problem with
§ 2255 before § 2241 becomes available. In other
words, something more than a lack of success with a §
2255 motion must exist before the savings clause is
satisfied.” Id. at 1136. The test remains
whether Section 2255 is an inadequate or ineffective remedy,
meaning whether it allows the petitioner “a reasonable
opportunity to obtain a reliable judicial determination of
the fundamental legality of his conviction and
sentence.” Id. (quoting In re
Davenport, 147 F.3d 605, 609 (7th Cir. 1998)).
does not begin to meet the conditions necessary to invoke the
savings clause successfully. For one, he has not cited a new
case that would support his request for release, much less be
applied retroactively. Nor has he established some structural
problem that renders § 2255 an inadequate remedy.
Accordingly, § 2241 is unavailable as a means for Baker
to circumvent the requirement of advance approval from the
Seventh Circuit before proceeding on another § 2255
Rule 11 of the Rules Governing Section 2254 Cases, the court
must issue or deny a certificate of appealability when
entering a final order adverse to petitioner. 28 U.S.C.
§ 2253(c)(2); Tennard v. Dretke, 542 U.S. 274,
282 (2004). Generally, this means that “reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
and citations omitted). To the extent that this order
qualifies as “final” for purposes of Rule 11, the