Opinion
10 CR 1068-2 19 C 6436
02-14-2022
UNITED STATES OF AMERICA, Plaintiff, v. JOSE MALDONADO, Defendant.
ORDER
REBECCA R. PALLMEYER, UNITED STATES DISTRICT JUDGE
Petitioner Jose Maldonado's motion to vacate his sentence under 28 U.S.C. § 2255 is currently pending before this court. Recently, Maldonado filed another petition, this time under 28 U.S.C. § 2241, in another district court; that petition has since been transferred to this court. For the following reasons, the court will treat Maldonado's § 2241 petition as a motion to amend his pending § 2255 petition. The court also orders a new briefing schedule, as detailed below.
STATEMENT
On September 19, 2019, Petitioner Jose Maldonado filed a petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, raising several ineffective assistance of counsel claims [1]. This court rejected most of his claims, but concluded that an evidentiary hearing was necessary to determine whether counsel was ineffective during plea negotiations [26]. See United States v. Maldonado, No. 10 CR 1068-2, 2022 WL 124161, at *5 (N.D. Ill. Jan. 13, 2022). The court set a status hearing for February 22, 2022, but has not yet set a date for any evidentiary hearing [27].
As his § 2255 motion remained pending in this court, Maldonado filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the Eastern District of Michigan. (See Case No. 21 C 11710.) In that petition, Maldonado challenges his conviction for unlawful possession of a firearm by a felon. See 18 U.S.C. §§ 922(g), 924(a)(2). He cites the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191, 2194 (2019), which held that for a felon-in-possession charge, tthe government must prove the defendant “knew he had the relevant status when he possessed [a firearm].” That did not happen in his case, Maldonado argues. He contends that he was actually innocent of his felon-in-possession conviction because at the time of the alleged offense, he believed he was permitted to possess a firearm: although he stipulated his prior felony at trial, he had received a notice from the Illinois Department of Corrections informing him that his civil rights were restored. (Section 2241 Petition [31] at 6-7).
Habeas corpus relief under § 2241 is only available when the remedy afforded by § 2255 is “inadequate or ineffective to test the legality of [the prisoner's] detention.” Millis v. Segal, 5 F.4th 830, 833 (7th Cir. 2021) (quoting 28 U.S.C. § 2255(e)). Because Maldonado's § 2255 motion is currently pending, he cannot characterize the yet-to-be-decided remedy as inadequate or ineffective. Blanton v. Wrigley, 168 Fed.Appx. 238, 239 (9th Cir. 2006); cf. Morales v. Bezy, 499 F.3d 668, 672 (7th Cir. 2007) (“A prisoner cannot be permitted to lever his way into section 2241 by making his section 2255 remedy inadequate. . . .”). Judge Linda Parker of the Eastern District of Michigan therefore transferred Maldonado's § 2241 petition to this court for consideration as a proposed amendment to his pending § 2255 petition. (Transfer Order [30] at 8.) The court agrees with this outcome, and will treat Maldonado's § 2241 petition as a motion to amend his § 2255 petition and add the new Rehaif argument.
Judge Parker also stayed Maldonado's § 2241 proceedings and held the habeas petition in abeyance, to be re-opened after either (1) this court denied Maldonado's motion to amend or (2) this court denied the amended § 2255 petition on the merits and that decision was affirmed by the Seventh Circuit. (Transfer Order at 8-9.)
The different statutory scheme and limitations imposed by § 2255 raise several questions unanswered by the parties: whether, as Maldonado contends, Rehaif applies retroactively on collateral review, see Van v. Marske, No. 19-CV-1060-WMC, 2022 WL 392512, at *2 (W.D. Wis. Feb. 9, 2022); whether his July 14, 2021 amendment is timely under § 2255's one-year statute of limitations, see United States v. Washington, No. 20 C 50300, 2021 WL 2222609, at *2-3 (N.D. Ill. June 2, 2021); and whether his Rehaif argument is procedurally defaulted, see Id. at *3-5. Additionally, the court notes that the Seventh Circuit, in an unpublished order, recently rejected an argument similar to Maldonado's. See Clark v. Segal, 854 Fed.Appx. 88, 90 (7th Cir. 2021), reh'g denied (Dec. 9, 2021) (concluding that because the defendant did not establish the affirmative defense of civil rights restoration, his belief that he could possess firearms was not a “miscarriage of justice” for § 2241 relief).
Given these complications, the court declines to rule on Maldonado's motion to amend without affording counsel the chance to provide some input. The court orders a new briefing schedule, as detailed below.
CONCLUSION
For the foregoing reasons, the court orders the government to respond to Maldonado's motion to amend [31] by no later than March 7, 2022. Maldonado is directed to file a reply to the government's submission by no later than March 28, 2022.