In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3513
JIMMIE DARRELL POE, SR.,
Petitioner‐Appellant,
v.
LEANN LARIVA, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division
No. 2:14‐cv‐00324 — William T. Lawrence, Judge.
____________________
ARGUED APRIL 7, 2016 — DECIDED AUGUST 22, 2016
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. In 1996, a jury convicted Petitioner
Jimmie Poe of several narcotics‐related offenses, including en‐
gaging in a continuing criminal enterprise (“CCE”). On June
1, 1999, the Supreme Court decided Richardson v. United States,
526 U.S. 813 (1999), which rendered the CCE jury instructions
used in Poe’s trial erroneous.
2 No. 14‐3513
Poe petitioned, on July 16, 1999, for a writ of habeas cor‐
pus, pursuant to 28 U.S.C. § 2241, challenging his conviction
under Richardson. Fourteen months later, the district court dis‐
missed Poe’s § 2241 petition without prejudice, because he
should have filed under 28 U.S.C. § 2255. On June 18, 2001,
Poe petitioned for a writ of habeas corpus, pursuant to § 2255,
which was subsequently denied as time‐barred. We affirmed
the district court’s denial of Poe’s § 2255 petition in Poe v.
United States, 468 F.3d 473 (7th Cir. 2006).
On October 28, 2014, Poe filed a new § 2241 petition, chal‐
lenging his conviction and sentence in light of Alleyne v.
United States, 133 S. Ct. 2151 (2013). The district court denied
his petition, again for not filing it under § 2255, and he ap‐
pealed. We affirm.
I. BACKGROUND
We begin with a brief synopsis of Poe v. United States,
which makes up the early background of Poe’s case. We then
summarize the present case, which relates to his § 2241 peti‐
tion, filed on October 28, 2014.
A. Poe v. United States
In 1996, Poe was charged with various narcotics‐related
offenses, including engaging in a CCE, in violation of 21
U.S.C. § 848(c). At Poe’s trial, the district court provided the
following jury instructions to find violation of the CCE stat‐
ute: “You must unanimously find that the defendant commit‐
ted at least two violations of the federal drug laws, but you do
not have to agree on which two violations.” Poe v. United States,
468 F.3d at 475 (emphasis in original and internal quotation
marks omitted). The jury convicted Poe of one count of CCE
and nine other counts of narcotics‐related offenses, and the
No. 14‐3513 3
district court sentenced him to 360 months’ imprisonment.
This court affirmed on direct appeal.
On June 1, 1999, the Supreme Court decided Richardson,
which held that for a CCE conviction under § 848(c), the un‐
derlying individual violations are elements of the CCE and
therefore require jury unanimity. 526 U.S. at 824. In light of
Richardson, the jury instructions used in Poe’s trial were erro‐
neous.
On July 16, 1999, Poe filed a § 2241 petition, challenging
his CCE conviction under Richardson. Fourteen months later,
on September 19, 2000, the district court dismissed Poe’s
§ 2241 petition as procedurally improper, without prejudice,
and advised him to file a § 2255 petition, which he did so on
June 18, 2001. Twenty‐one months later, on March 17, 2003,
the district court denied Poe’s § 2255 petition as untimely. Poe
appealed, and this court granted him a certificate of appeala‐
bility.
On November 6, 2006, this court decided Poe v. United
States, affirming the denial of Poe’s § 2255 petition. 468 F.3d
at 478. In that decision, we began by determining that Poe’s
§ 2255 motion was untimely. Id. at 476. We then held that
“[t]here is no legal basis for Poe to claim he was entitled to
have his improper § 2241 petition construed as a § 2255 mo‐
tion for purposes of AEDPA’s statute of limitations.” Id. at 477
(emphasis in original). In conclusion, we noted that even if
Poe’s § 2255 petition had been timely, it would have “run up
against this circuit’s case law holding Richardson error to be
harmless where the jury unanimously convicted the defend‐
ant of two or more separate drug offenses along with the CCE
offense. … Poe was separately convicted of five felony counts
4 No. 14‐3513
of distributing marijuana or possessing marijuana with intent
to distribute.” Id. at 478 n. 8. (citations omitted).
B. Current 28 U.S.C. § 2241 Petition
We now consider the present case. On June 17, 2013, the
Supreme Court decided Alleyne, which held that any fact that
increases the mandatory minimum of a sentence is an element
of the crime that must be submitted to the jury. 133 S. Ct. at
2162–63. On October 28, 2014 Poe filed another § 2241 peti‐
tion, claiming that, because the jury never found him guilty
of an element of 21 U.S.C. § 838(c), his CCE conviction and
sentence were unconstitutional in light of Alleyne.
On November 3, 2014, the district court summarily denied
Poe’s § 2241 petition. The district court explained that a fed‐
eral prisoner may only use a § 2241 petition if § 2255 is “inad‐
equate or ineffective,” which, in turn, requires reliance on “a
new case of statutory interpretation rather than a constitu‐
tional decision.” (R. 3 at 2.) The district court declared that Al‐
leyne was a constitutional decision and it “may not be applied
retroactively to cases on collateral review.” (Id.) Poe’s § 2241
petition was denied, and he appealed.
On July 21, 2015, this court granted a certificate of appeal‐
ability and directed the parties to “address the bearing of Web‐
ster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc), Brown v.
Caraway, 719 F.3d 583 (7th Cir. 2013), Crayton v. United States,
No. 13‐2548, 2015 WL 3895767 (7th Cir. June 25, 2015), and
Persaud v. United States, 134 S. Ct. 1023 (2014) (mem.).”
II. ANALYSIS
On appeal, Poe argues that the district court erred in its
denial of his § 2241 petition. Alternatively, he contends that
No. 14‐3513 5
his § 2241 petition should be treated as a request to file a suc‐
cessive § 2255 petition.
A. 28 U.S.C. § 2241
Poe’s primary claim is that the district court erred in its
denial of his § 2241 petition, which relied on Alleyne. “We re‐
view the denial of a § 2241 petition de novo.” Caraway, 719
F.3d at 586.
“Federal prisoners who seek to bring collateral attacks on
their conviction or sentences must ordinarily bring an action
under 28 U.S.C. § 2255.” Id. Section 2255(a) provides that “[a]
prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the Con‐
stitution or laws of the United States … may move the court
which imposed the sentence to vacate, set aside or correct the
sentence.”
A federal prisoner, however, may file a petition under
§ 2241, if the remedy under § 2255 is “‘inadequate or ineffec‐
tive to test the legality of his detention.’” Caraway, 719 F.3d at
586 (quoting 28 U.S.C. § 2255(e) (“Savings Clause”)). This
generally requires “a structural problem in § 2255 [that] fore‐
closes even one round of effective collateral review,” unre‐
lated to the petitioner’s own mistakes. Taylor v. Gilkey, 314
F.3d 832, 835 (7th Cir. 2002).
Here, Poe’s claim fails because he cannot demonstrate that
there is a structural problem with § 2255 that is preventing
him from seeking relief to which he is entitled.
6 No. 14‐3513
One circumstance under which this court has permitted
resort to § 2241 is under the following three‐condition test, es‐
tablished in In re Davenport, 147 F.3d 605, 610–12 (7th Cir.
1998):
First, the prisoner must show that he relies on a stat‐
utory‐interpretation case, rather than a constitu‐
tional case. Second, the prisoner must show that he
relies on a retroactive decision that he could not
have invoked in his first § 2255 motion. The third
condition is that [the] sentence enhancement … have
been a grave enough error to be deemed a miscar‐
riage of justice corrigible therefore in a habeas cor‐
pus proceeding.
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (alteration
in original) (citations and internal quotation marks omitted).
Poe cannot show that Davenport permits him to use § 2241
to contest his detention. Poe’s § 2241 petition fails the first
Davenport condition because Alleyne is a constitutional case,
not a statutory‐interpretation case. This court has expressed
clearly that “Alleyne establishes a new rule of constitutional
law.” Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013).
Poe contends that Caraway misreads Davenport, asserting
that Davenport does not actually preclude use of § 2241 for a
constitutional case. This contention is meritless. The Daven‐
port conditions for § 2241 were based on an assessment of the
essential functions of habeas corpus and limitations of the
remedy under § 2255. 147 F.3d at 609. Davenport explicitly
noted that § 2255 “gives a convicted defendant only one fur‐
ther bite at the apple after his direct appeal unless he can
demonstrate a compelling reason, as defined in the section”
such as “a new and retroactive rule of constitutional law.” Id.
No. 14‐3513 7
at 610. The Davenport court was referring to § 2255(h), which
allows a “[a] second or successive motion” for “a new rule of
constitutional law, made retroactive to cases on collateral re‐
view by the Supreme Court, that was previously unavaila‐
ble.”
Because § 2255(h) already provides a remedy for new con‐
stitutional cases, these types of cases would not fall under the
Savings Clause, which is available only if the remedy under
§ 2255 is “inadequate or ineffective.” Where Davenport recog‐
nized a structural problem in § 2255(h) is in the fact that it did
not permit a successive petition for new rules of statutory law
made retroactive by the Supreme Court. Thus, Caraway did
not misread Davenport.
Poe’s § 2241 petition also fails the second Davenport condi‐
tion because Alleyne is not retroactive. This court has held un‐
ambiguously that “Alleyne does not apply retroactively.”
Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015). This
is because “[t]he declaration of retroactivity must come from
the Justices. The Court resolved Alleyne on direct rather than
collateral review. It did not declare that its new rule applies
retroactively on collateral attack.” Simpson v. United States, 721
F.3d 875, 876 (7th Cir. 2013) (citations omitted). Moreover, in‐
cluding this court, “[e]very court of appeals that has consid‐
ered the subject has concluded that Alleyne is not retroactive
on collateral review.” Crayton, 799 F.3d at 624 (collecting
cases). Poe does not provide any persuasive reason to disturb
this court’s rule that Alleyne is not retroactive, so it shall re‐
main in place.
Nor can Poe point to any other authorities that would
grant him the ability to file a § 2241 petition. The authorities
mentioned in our grant of a certificate of appealability cannot
8 No. 14‐3513
sustain Poe’s claim. Persaud, 134 S. Ct. at 1023, and Caraway,
719 F.3d at 587–89, stand for the proposition that a prisoner
can challenge his sentence through a § 2241 petition, as Poe
does here. But these two cases provide no further help to Poe.
As discussed, Crayton actually cuts against Poe’s claim be‐
cause it reiterates the Davenport conditions for a § 2241 peti‐
tion, which Poe fails to meet. 799 F.3d at 624–25.
Webster also cannot assist Poe. In Webster, this court held
that “there is no categorical bar against resort to section 2241
in cases where new evidence would reveal that the Constitu‐
tion categorically prohibits a certain penalty.” 784 F.3d at
1139. Webster, however, is inapplicable to the present case be‐
cause Poe’s § 2241 petition does not involve a claim of new
evidence—instead, he raises a claim under Alleyne that the
jury did not find him guilty of an element of CCE.
Poe contends that Webster stands for the proposition that
“the savings clause of § 2255(e) permit[s] a federal prisoner to
resort to a petition under § 2241 because the United States Su‐
preme Court established that the Constitution itself forbade
the sentence imposed.” (Appellant Br. 6.) This reading of Web‐
ster is too broad. Webster stemmed from a structural problem
in § 2255—the defendant could not have used § 2255 at the
time of Atkins v. Virginia, 536 U.S. 304 (2002), because he did
not have the new evidence of his social security records, Web‐
ster, 784 F.3d at 1134, and he could not use the new evidence
when discovered because, under the Fifth Circuit’s rule,
§ 2255(h)(1) required evidence of innocence of the offense, not
of the penalty, id at 1135. Additionally, there is nothing in
Webster to suggest that its holding applies outside the context
of new evidence. Indeed, the Webster court took great care to
assure that its holding was narrow in scope—“[i]t will be a
No. 14‐3513 9
rare case where records that predate the trial are found much
later, despite diligence on the part of the defense, and where
those records bear directly on the constitutionality of the
death sentence.” 784 F.3d at 1140 (first emphasis added).
In contrast to Webster, Poe was unable to bring his Richard‐
son claim because he filed the wrong petition under § 2241 and
his subsequent petition under § 2255 was untimely. Unlike
Webster, Poe’s case involves neither a structural problem with
§ 2255, nor new evidence. Hence, Webster does not help Poe.
On a final note, Poe makes various attempts to improperly
shoehorn his Richardson claim into his § 2241 petition, which
relied on Alleyne. His argument essentially runs as follows:
Richardson has been applied retroactively, and because there
exists a “nexus” between Alleyne and Richardson, Richardson’s
retroactivity should allow Poe’s Alleyne claims to proceed un‐
der § 2241. (Appellant Br. 13–14.) Poe’s argument makes no
sense. In asserting such a “nexus,” it appears that Poe is trying
combine Richardson’s retroactivity and statutory interpreta‐
tion with Alleyne’s recent timing to fulfill the requirements for
§ 2241. A petitioner may not “cherry‐pick” aspects of legally
unrelated Supreme Court cases in order to overcome
AEDPA’s procedural requirements. Therefore, we reject Poe’s
attempts.
B. 28 U.S.C. § 2255
In the alternative, Poe requests that this court construe his
petition as a request for leave to file a successive § 2255 peti‐
tion.
But construing Poe’s petition as a successive one under
§ 2255 would be futile, which Poe concedes. (Appellant Br.
14.) As discussed, § 2255 allows a successive motion for “a
10 No. 14‐3513
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) (emphasis added). But we
have held that “Alleyne is not retroactive on collateral re‐
view.” Crayton, 799 F.3d at 624; see also Simpson, 721 F.3d at
876. Thus, if Poe filed a successive § 2255 petition relying on
Alleyne, it would be futile.
III. CONCLUSION
For the foregoing reasons, the district court’s denial of
Poe’s petition for a writ of habeas corpus is AFFIRMED.