United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
Donavan Cross seeks habeas corpus relief under 28 U.S.C.
§ 2241 from his continued confinement at the Federal
Correctional Institution at Oxford, Wisconsin. The petition
is before the court for preliminary review under Rule 4 of
the Rules Governing Section 2254 Cases, which may be applied
to habeas petitions brought under § 2241. Rule 1(b),
Rules Governing Section 2254 Cases; 28 U.S.C. § 2243.
Under Rule 4, the court will dismiss the petition only if it
plainly appears that petitioner is not entitled to relief.
contends that his confinement violates the Constitution
because his 2016 federal convictions for “felon in
possession of a firearm” and “being an unlawful
user of a controlled substance in possession of firearms and
ammunition” (1) violate the Second Amendment; (2)
violate the Tenth Amendment because federal courts do not
have jurisdiction to convict persons for those offenses; and
(3) constitute unlawful “Bills of Attainder.”
Because these claims lack merit, the petition will be
initial matter, petitioner has not shown that he may seek
relief under § 2241. The usual manner in which a federal
prisoner may collaterally attack a conviction or sentence is
by filing a petition pursuant to 28 U.S.C. § 2255.
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
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)). Under
the law of the Seventh Circuit, three conditions must be
present before a petitioner may proceed under § 2241
pursuant to the “inadequate or ineffective”
exception: (1) the petitioner must be relying on a new
statutory-interpretation case, rather than on a
constitutional case, because § 2255 offers relief to
prisoners who rely on new constitutional cases; (2) the
statutory-interpretation must be retroactive on collateral
review; and (3) the error the petitioner identifies must be
grave enough to be deemed a miscarriage of justice. Light
v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014); In re
Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998).
instance, petitioner cannot demonstrate that the first two
conditions are present: he has not identified a new statutory
interpretation case, much less that a new case applies
retroactively on collateral review. Because petitioner may
not proceed under § 2241, his petition must be
petitioner's claims fail on the merits. Petitioner argues
that 18 U.S.C. § 922 is an improper extension of
Congress's authority and of the federal courts'
jurisdiction, because his actions were committed within the
territory of a state. These arguments are frivolous and have
been rejected repeatedly by the Seventh Circuit. United
States v. Sidwell, 440 F.3d 865, 870 (7th Cir. 2006);
United States v. Thompson, 359 F.3d 470, 480 (7th
Cir. 2004); United States v. Lemons, 302 F.3d 769,
772 (7th Cir. 2002); United States v. Mitchell, 299
F.3d 632 (7th Cir. 2002); United States v. Wesela,
223 F.3d 656, 659-60 (7th Cir. 2000), cert. denied, 531 U.S.
arguments concerning the Second Amendment are also
unpersuasive. Section 922(g)(1) provides that
[i]t shall be unlawful for any person who has been convicted
in any court of, a crime punishable by imprisonment for a
term exceeding one year . . . to ship or transport in
interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported
in interstate or foreign commerce.
argues that the statute violates his Second Amendment right
to bear arms, but “[l]ike most rights, the right
secured by the Second Amendment is not unlimited.”
District of Columbia v. Heller, 554 U.S. 570, 626
(2008). In Heller, the Supreme Court explicitly noted that
“nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by
felons[.]” Id. See also Baer v.
Lynch, 636 F.Appx. 695, 697 (7th Cir. 2016)
(“[T]he Supreme Court made clear that categorical bans
on firearm possession do not necessarily offend the Second
Amendment and that some bans, including the one at issue here
[18 U.S.C. § 922(g)(1)], are presumptively
petitioner has not demonstrated that he may proceed under
§ 2241, and because he is not entitled to relief on the
merits of his claims in any event, his petition must be
ORDERED that the federal habeas corpus petition filed by
Donavan Cross under 28 U.S.C. § 2241 is DENIED and this
case is DISMISSED with prejudice. ...