The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT LYNN BELL,
Petitioner,
v.
Case No. 22-CV-02387-SPM
WARDEN, ERIC WILLIAMS.
Respondent.
MEMORANDUM & ORDER
McGLYNN, District Judge:
Petitioner Robert Lynn Bell is currently incarcerated at FCI Greenville after
pleading guilty to an armed carjacking in violation of 18 U.S.C. § 2119. United States
v. Bell, Case No. 3:93-cr-00302-M-1 (N.D. TX), ECF No. 1. The District Court imposed
a sentence of 240 months to run consecutively to sentences imposed in state court for
the same conduct. Id. He filed this Habeas Corpus action pursuant to 18 U.S.C. §
2241 challenging the validity of his conviction.
Bell previously directly appealed his consecutive sentence arguing that United
States Sentencing Commission, Guidelines Manual, §5G1.3 (2021), should have
applied in his case, causing the District Court Judge to sentence him concurrent to
his state sentence. (Doc. 1). Initially the matter was remanded for the District Court
Judge to explain this upward departure; however, the 240-month sentence was
eventually affirmed. (Doc. 1).
Bell filed his § 2241 Petition on October 13, 2022 (Doc. 1). This case is now
before the Court for preliminary review of the Petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in United States District Courts. Rule 4 provides that
upon preliminary consideration by the District Court Judge, “[i]f it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to relief
in the district court, the judge must dismiss the petition and direct the clerk to notify
the petitioner.” Rule 1(b) gives the Court the authority to apply the Rules to other
habeas corpus cases, such as this action under § 2241. After carefully reviewing the
petition and subsequent filings, the Court concludes that this action must be
dismissed.
LEGAL STANDARD
Generally, petitions for Writ of Habeas Corpus under 28 U.S.C. § 2241 may
only be employed to challenge the execution of a sentence. See Valona v. United
States, 138 F.3d 693, 694 (7th Cir. 1998). Therefore, excluding the direct appeal, a
federal prisoner is ordinarily limited to challenging their sentence by bringing a
motion in the court which sentenced them, pursuant to 28 U.S.C. § 2255. See Kramer
v. Olson, 347 F.3d 214, 217 (7th Cir. 2003).
Under limited circumstances, a prisoner may challenge his conviction or
sentence under § 2241. § 2255(e) contains a “savings clause” which authorizes a
federal prisoner to file a § 2241 petition where remedy under § 2255 is “inadequate
or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see also United
States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). A petitioner must
demonstrate the inadequacy of a § 2255 motion in curing the defect in his conviction
due to a structural problem in the statute. See Webster v. Daniels, 784 F.3d 1123,
1136 (7th Cir. 2015). “A procedure for postconviction relief can be fairly termed
inadequate when it is so configured as to deny a convicted defendant any opportunity
for judicial rectification of so fundamental a defect in his conviction as having been
imprisoned for a nonexistent offense.” In re Davenport, 147 F.3d 605, 609-10 (7th Cir.
1998).
Following Davenport and its progeny, the Seventh Circuit has developed a
three part test for determining whether § 2255 is inadequate or ineffective so as to
trigger the savings clause: (1) The federal prisoner must seek relief based on a
decision of statutory interpretation (as opposed to constitutional interpretation); (2)
The statutory rule of law in question must apply retroactively to cases on collateral
review and could not have been invoked in a first § 2255 motion; and (3) A failure to
afford the prisoner collateral relief would amount to an error “grave enough” to
constitute a “miscarriage of justice.” Worman v. Entzel, 953 F.3d 1004, 1008 (7th Cir.
2020) (citing Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016). The failure to
satisfy any of these elements is grounds for the termination of the appeal. See
Worman v. Entzel, 953 F.3d 1004, 1008 (7th Cir. 2020).
DISCUSSION
In this petition, Bell argues that he meets the requirement of the savings
clause because he is asking the court to consider him without the “career offender”
enhancement, which was found to meet the requirements of the savings clause in
Brown v. Caraway, 719 F.3d 583, (7th Cir. 2013). (Doc. 1).
Bell fails to satisfy the Davenport conditions. Bell asserts that he is in the same
position as the petitioner in Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013),
asking the court to reconsider him without the career offender enhancement, which
was found to fall within the bounds of the savings clause for Brown. (Doc. 1). However,
Bell proceeds to challenge the constitutionality of the consecutive nature of his
sentence, without elaborating on the career offender enhancement. Principally, Bell
argues the District Court erred by imposing a consecutive rather than concurrent
sentence. (Doc. 1). This argument was previously raised by Bell on a direct appeal,
and the court found that it would be within the Court’s discretion to depart upward
from the sentencing guidelines in his matter, so long as the departure was reasonable,
and the court justified it in terms of the policies underlying the guidelines. United
States v. Bell, Case No. 3:94-cr-10196 (5th Cir. 1995), ECF No. 1. Notwithstanding
the merits of this argument for now a third time on review, Bell fails to elaborate as
to how his case is similar to Brown, or in the alternative how his case on its own
merits satisfies the savings clause so as to survive this preliminary review (Doc. 1).
Thus, Bell has failed to present any argument upon which this Court could find he
satisfied the first requirement of the savings clause.
Further, Bell does not satisfy the second prong of the test, as he has previously
raised the issue of being erroneously classified as a career offender in a prior § 2255
motion. Robert Bell v. United States, Case No. 3:16-cv-01624-G-BF (N.D. TX), ECF
No. 8. The fact that Bell is barred from bringing a successive § 2255 petition is not
sufficient to render § 2255 an inadequate remedy. See In Re Davenport, 147 F.3d 605,
609-10 (7th Cir. 1998). Bell continues to present arguments that have already been
adjudicated by the federal court system, while also failing to justify why he meets the
savings clause requirements. Therefore, Bell has not met the second prong of the
savings clause, as he has already brought this argument in a previous § 2255 motion.
CONCLUSION
For the foregoing reasons, the Petition, (Doc. 1), is DISMISSED with prejudice.
The Clerk is DIRECTED to close this case and enter judgment accordingly.
CERTIFICATE OF APPEALABILITY
It is not necessary for Petitioner to obtain a certificate of appealability from
this disposition of his § 2241 Petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir,
2000). If Petitioner wishes to appeal, he may file a notice of appeal with this Court
within 60 days of the entry of judgment. FED. R. APP. P. 4(a)(1)(B)(iii). A proper and
timely appeal motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll
the 60-day deadline. A Rule 59(e) motion must be filed no more than twenty-eight
(28) days after the entry of judgment, and this cannot be extended.
A motion for leave to appeal in forma pauperis must identify the issues
Petitioner plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If Petitioner
does choose to appeal and is allowed to proceed IFP, he will be liable for a portion of
the $505.00 appellate filing fee (the amount to be determined based on his prison
trust fund account records for the past six months) irrespective of the outcome of the
appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d
724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999).
IT IS SO ORDERED.
DATED: April 19, 2023
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge