United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
Kenneth Lippitt seeks a writ of habeas corpus under 28 U.S.C.
§ 2241, claiming that recent changes in drug laws
require him to be released from federal custody. While
Lippitt has been released from prison, he currently is under
supervised release, and thus still considered to be in
custody for purposes of his petition. See United States
v. Trotter, 270 F.3d 1150, 1152 (7th Cir. 2001). After
conducting a preliminary review of the petition pursuant to
Rule 4 of the Rules Governing Section 2254 Cases, the court
concludes that this case is subject to dismissal for reasons
set forth below.
September 5, 1995, Lippitt pled guilty in this court to the
charge that he conspired to manufacture a Schedule II
controlled substance. Prior to his plea, he had signed a
waiver of rights under the interstate agreement on detainers
and was returned to state custody. He was sentenced on
December 1, 1995, and resentenced on May 19, 1998. United
States v. Lippitt, No. 3:95-cr-36-jdp, dkt. #239 (W.D.
Wis. May 19, 1998). At sentencing, the court concluded that
he qualified as a career offender under U.S.S.G. § 4B1.1
because he was over the age of 18 when he committed the
offense; the offense was a felony and a controlled substance
offense; and he had at least two prior convictions of either
a crime of violence or controlled substance offense. Among
his prior convictions were a conviction for possession with
intent to deliver a controlled substance, a robbery
conviction and four different convictions for burglary of a
residence. Id., dkt. #169, at 7.
to filing the currently pending motion to vacate, Lippitt
filed two petitions under 28 U.S.C. § 2255, and both
were denied. In 1998, his § 2255 motion was denied
because at the time he filed the motion, he was also
appealing the order resentencing him, and he had not shown
that extraordinary circumstances justified the court
addressing that motion. Lippitt v. United States,
No. 98-cv-388-jcs (W.D. Wis. Aug. 5, 1998).
2000, Lippitt filed another motion to vacate under §
2255, which was also denied. Lippitt v. United
States, No. 00-cv-449-jcs (W.D. Wis. Sept. 27, 2000). In
that petition, Lippitt argued that his counsel was
ineffective for failing to investigate a defense under the
Interstate Agreement on Detainers Act (“IAD”).
The court rejected that argument because he had no IAD claim,
and he had not shown that the outcome would have been
different if he had been represented by other counsel.
recently, in 2015, Lippitt sent two letters to the sentencing
court, in which he stated that he learned that new career
offender guidelines would be effective in November of 2015,
and that he believed that change made him eligible for a
reduction in his sentence. Lippitt, No.
3:95-cr-36-jdp, dkts. #295, #296. He stated that because he
sat in civil contempt for three and a half years, the change
in the law should make him eligible for release. The court
construed his letter as a request for reduction in sentence
under 18 U.S.C. § 3582(c)(2), and dismissed it on July
20, 2015, because at the time he was sentenced, Lippitt
qualified as a career offender and the amendments to the
sentencing guidelines did not affect the career offender
guidelines. Id., dkt. #297.
pending § 2241 petition similarly seeks relief based on
the 2015 changes in drug laws and the extended period of time
he spent in civil contempt custody of court prior to serving
his sentence. He seeks release from custody because he claims
that his drug sentence has already been served and because
new drug laws should not exclude career offenders.
a federal prisoner challenging his conviction or sentence
must do so on direct appeal or in a motion filed under 28
U.S.C. § 2255 in the district in which he was convicted.
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
However, there is a limit to the number of collateral attacks
a prisoner may bring, and petitioner has filed at least one
§ 2255 motion regarding his sentence. In particular, a
second or successive collateral attack is permissible only if
the court of appeals certifies that it rests on newly
discovered evidence (which petitioner's does not) or
“a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h)(2).
§ 2255(e) allows a federal prisoner to “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)). To
satisfy § 2255(e), a prisoner must show three things:
(1) his petition is based on a rule of statutory law; (2) he
is relying on a retroactive decision that he could not have
invoked in his first § 2255 motion; and (3) the sentence
enhancement must have been a grave enough error to be deemed
a miscarriage of justice. Light v. Caraway, 761 F.3d
809, 812-13 (7th Cir. 2014); In re Davenport, 147
F.3d 605, 610-12 (7th Cir. 1998). See also Webster v.
Caraway, 761 F.3d 764, 767 (7th Cir. 2014) (“When
a change of law, retroactively applicable, shows that the
prisoner did not commit a crime or has received an illegally
high sentence, § 2241 is available if it otherwise would
be impossible to implement the Supreme Court's
intervening decision.”). As petitioner recognizes, a
petition under § 2241 must be brought in the district in
which the prisoner is confined rather than the district in
which the prisoner was sentenced. Light, 761 F.3d at
does not get the benefit of the savings clause because he has
not cited a new case that would support his request for
release. Accordingly, Lippitt is not entitled to use §
2241 as a means to circumvent the fact that he is foreclosed
from proceeding on another § 2255 petition without
approval from the Seventh Circuit.
Rule 11 of the Rules Governing Section 2255 Proceedings, the
court must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). 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. ...