UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF INDIANA 

DEMETRIUS JACKSON, ) 

) 

Petitioner, ) 

v. ) No. 2:10-cv-206-WTL-WGH 

) 

MARBERRY, ) 

) 

Respondent. ) 

Entry Discussing Petition for Writ of Habeas Corpus 

 Demetrius Jackson is confined by the Federal Bureau of Prisons following his 

1998 conviction for possession with intent to deliver crack cocaine and possession of 

crack cocaine. He has filed the present petition for a writ of habeas corpus. 

Background

In 1998, Jackson was convicted of possession with intent to deliver crack 

cocaine and possession of crack cocaine. See United States v. Jackson, 177 F.3d 628 

(7th Cir. 1999). On direct appeal, Jackson’s convictions were affirmed but his 

sentence of ninety-seven months imprisonment, which the government challenged on 

direct appeal as too lenient, was vacated and the case was remanded to the district 

court for re-sentencing. The Seventh Circuit concluded that “[s]ince Jackson had two 

prior felony convictions for crimes of violence, he should have received a career 

offender enhancement pursuant to U.S.S.G. § 4B1.1.” 

On July 30, 1999, Jackson was re-sentenced as a career offender to 262 months 

imprisonment pursuant to USSG § 4B1.1. See Jackson v. United States, 463 F.3d 635 

(7th Cir. 2006). Jackson’s predicate felony crimes of violence were Indiana 

convictions for burglary (Ind. Code 35-43-2-1) and criminal recklessness (Ind. Code 

35-42-2-2). Jackson, 177 F.3d at 632-33. Jackson did not appeal the sentence imposed 

pursuant to the remand. In March of 2000, he filed a petition pursuant to 28 U.S.C. § 

2255. That petition was denied and Jackson did not appeal. 

Five years after his 1998 federal controlled substance convictions were 

entered, Jackson succeeded in having his Indiana criminal recklessness conviction 

reduced to a misdemeanor. Jackson v. United States, 463 F.3d 635, 636 (7th Cir. 

2006). However, because Jackson had expended, in the year 2000, his initial 28 

U.S.C. § 2255 motion, he could not raise this change in circumstances by way of a § 
2255 motion. Jackson, 463 F.3d at 636. Jackson sought relief pursuant to 18 U.S.C. § 

3742, but the Seventh Circuit rejected his motion for relief by finding that the district 

court had correctly construed Jackson’s so-called § 3742 action as a 28 U.S.C. § 2255 

motion and affirmed the dismissal of Jackson’s challenge as a unauthorized 

successive 28 U.S.C. § 2255 motion. See Jackson, 463 F.3d at 638-40. Jackson next 

sought relief from his sentence by way of an 18 U.S.C. § 3582 (c)(2) motion for a 

reduction of sentence. See United States v. Jackson, 573 F.3d 398 (7th Cir. 2009). 

Section 3582 allows a district court to modify a sentence “in the case of a defendant 

who has been sentenced to a term of imprisonment based on a sentencing range that 

has been subsequently lowered by the Sentencing Commission.” 18 U.S.C. § 

3582(c)(2); United States v. Jackson, 573 F.3d at 399. That authority, however, may 

only be exercised when “[f]irst, an amendment to the Sentencing Guidelines must 

specifically be listed as having retroactive effect; and second, the amendment must 

lower the defendant’s guidelines range.” Id., 573 F.3d at 399. The Seventh Circuit 

determined that the district court correctly concluded that it lacked jurisdiction to 

reduce Jackson’s sentence. Id. That conclusion was reached because “Jackson was 

sentenced as a career offender and not under the amended Guidelines.” Id. Jackson 

now files this petition for relief pursuant to 28 U.S.C. § 2241. 

Discussion

Jackson was convicted of drug offenses and was sentenced as a career offender. 

He now contends that the enhanced sentence is unlawful because his conviction for 

criminal recklessness was reduced to a misdemeanor and he therefore is actually 

innocent of being a career offender. 

A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a 

federal prisoner can challenge his conviction or sentence. See Davis v. United States, 

417 U.S. 333, 343 (1974); United States v. Bezy, 499 F.3d 668, 670 (7th Cir. 2007). A 

28 U.S.C. § 2241 petition by a federal prisoner is generally limited to challenges to 

the execution of the sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 

1998); Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). However, a petition 

challenging the conviction may be brought pursuant to 28 U.S.C. § 2241 only if § 

2255 “would not . . . be[ ] adequate to test the legality of the conviction and sentence.” 

Melton v. United States, 359 F.3d 855, 858 (7th Cir. 2004); 28 U.S.C. § 2255(e). 

 A remedy via § 2255 is “inadequate or ineffective to test the legality of [the] 

detention” when a legal theory that could not have been presented under § 2255 

establishes the petitioner's actual innocence. In re Davenport, 147 F.3d 605 (7th Cir. 

1998). “A procedure for post-conviction relief can fairly be 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.” Id. at 611. It is the inmate's burden to show that a § 2241 

remedy is the proper one. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). “The 
essential point is that a prisoner is entitled to one unencumbered opportunity to 

receive a decision on the merits.” Potts v. United States, 210 F.3d 770 (7th Cir. 2000). 

Controlling and persuasive authority dictates that the savings clause 

embodied in § 2255(e) requires a claim of actual innocence directed to the underlying 

conviction, not merely the sentence. See, e.g., Unthank v. Jett, 549 F.3d 534, 536 (7th 

Cir. 2008) (“[The petitioner] does [not] claim to be innocent of the current crime. He 

says only that his sentence is too high, and as we [previously] explained[,] . . . this 

differs from a claim that he is innocent of the crime of which he was convicted.”);

Stephens v. Herrera, 464 F.3d 895, 898–99 (9th Cir. 2006) (holding that the petitioner 

did not qualify for the savings clause because he did not claim to be actually innocent, 

even though he satisfied the second § 2255(e) requirement because his claim was 

based on an intervening change in law that did not become available until twelve 

years after his conviction); Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 

2005)(“[B]ecause [the petitioner] does not attack his conviction and his claim 

challenges only the validity of his sentence, [the petitioner's] § 2241 petition does not 

fall within the savings clause of § 2255 . . . .”); Poindexter v. Nash, 333 F.3d 372, 382 

(2nd Cir. 2003)(“[W]hatever the merit of the contention that the Guidelines were 

misapplied in the treatment of [the petitioner's] three undisputed prior convictions, 

his claim that the three crimes should have been treated as one crime is not 

cognizable as a claim of actual innocence.”); Okereke v. United States, 307 F.3d 117, 

120–21 (3rd Cir. 2002) (the petitioner did not qualify for the savings clause because 

his claim related only to his sentence and not his underlying conviction); United 

States v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001) (“Without determining the 

exact scope of the savings clause, we conclude that defendants' claims do not fall 

within any arguable construction of it because . . . [they] do not argue innocence but 

instead challenge their sentences.”). 

Jackson has not been convicted of any non-existent offenses nor is he factually 

innocent of his convictions for which he is now serving a sentence nor the prior 

convictions relied upon to enhance his guidelines range. Because Jackson has sought 

relief pursuant to 28 U.S.C. § 2241 under circumstances which do not permit or 

justify the use of that remedy. His petition for writ of habeas corpus is denied. 

Judgment consistent with this Entry shall now issue. 

 IT IS SO ORDERED. 

Date: __________________ 

 

03/07/2012

 _______________________________ 

 Hon. William T. Lawrence, Judge 

 United States District Court 

 Southern District of Indiana