UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION

RAYMOND A. VANVALKENBURG, ) ) Petitioner, ) ) v. ) No. 2:20-cv-00695-JRS-MJD ) T.J. WATSON, ) ) Respondent. )

Order Denying Petition for Writ of Habeas Corpus and Directing Petitioner to Show Cause

Raymond Vanvalkenburg, an inmate at the Federal Correctional Institution in Terre Haute, Indiana, seeks a writ of habeas corpus pursuant to

. For the following reasons, the Court finds that the petition must be denied, and the petitioner is ordered to show cause why the petition should not be dismissed. I. Factual and Procedural Background On January 21, 2015, Mr. Vanvalkenburg was charged in a three-count indictment with possessing with intent to distribute 5 grams or more of methamphetamine in violation of

and 841(b)(1) (Count 1), using a firearm during and in relation to a drug trafficking crime in violation of

(c)(1)(a) (Count 2), and being a felon in possession of a firearm in violation of

(g)(1) and 924(a)(2) (Count 3). United States v. Vanvalkenburg, 8:15- cr-00023-JFB-TDT-1 (D. Neb.) ("Cr. Dkt.") dkt. 1. Mr. Vanvalkenburg pleaded guilty to Counts 1 and 2 of the indictment. Cr. Dkt. 21. On October 16, 2015, the district court accepted his plea and sentenced him to 133 months imprisonment. Cr. Dkt. 25. Pursuant to the plea agreement, Count 3 was dismissed. Cr. Dkt. 21, 25. Mr. Vanvalkenburg did not appeal, but on August 21, 2020, he filed a motion for relief pursuant to

challenging his conviction and sentence under United States v. Davis,

(2019) and Mathis v. United States,

(2016). Cr. Dkt. 32. The district court denied Mr. Vanvalkenburg's petition, concluding that Davis and Mathis are

inapplicable to his claims.

II. Discussion In his petition for a writ of habeas corpus, Mr. Vanvalkenburg challenges his conviction arguing that his convictions are invalid under Mathis and Rehaif v. United States,

(2019). Mr. Vanvalkenburg's habeas petition under

is subject to preliminary review to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4 of the Rules Governing § 2254 Cases (applicable to § 2241 petitions pursuant to Rule 1(b)); see

. If so, the petition must be summarily dismissed. Rule 4.

To proceed under § 2241, a motion pursuant to

must be "inadequate or ineffective to test the legality of his detention."

(e). Section 2255 is inadequate or ineffective if the following three requirements are met: "(1) the petitioner must rely on a case of statutory interpretation (because invoking such a case cannot secure authorization for a second § 2255 motion); (2) the new rule must be previously unavailable and apply retroactively; and (3) the error asserted must be grave enough to be deemed a miscarriage of justice, such as the conviction of an innocent defendant." Davis v. Cross,

(7th Cir. 2017). Based on Mr. Vanvalkenburg's petition and a review of the docket in his underlying criminal case, the Court concludes that Mr. Vanvalkenburg is not entitled to relief under § 2241. First, Mr. Vanvalkenburg argues that his conviction for using a firearm during and in relation to a drug trafficking crime is invalid in light of Mathis. He contends that he is entitled to pursue his Mathis claim in this § 2241 petition because he was time-barred from bringing his Mathis challenge when he filed his § 2255. Mathis was decided in 2016 and he did not file his

§ 2255 motion until 2020. But he was not barred from bringing a timely § 2255 motion based on Mathis. First,

(f) provides that its one-year statute of limitations may run from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Thus, if Mathis is retroactive, Mr. Vanvalkenburg could have brought a timely § 2255 motion based on Mathis if he had filed it within one year of the Mathis decision. The fact that he did not file his § 2255 motion until August of 2020 does not make § 2255 ineffective or inadequate. Moreover, Mr. Vanvalkenburg did in fact raise a Mathis claim in his § 2255 and the district court considered it on the merits. Cr. Dkt. 33. His lack of success on that motion does not make § 2255 inadequate or ineffective.

Next, Mr. Vanvalkenburg relies on Rehaif v. United States,

(2019), to challenge Count 3 of the indictment. The Supreme Court held in Rehaif that, to be convicted of being a felon in possession of a firearm under

(g)(1), a person must know that he or she belongs to a group covered under the statute barring possession of firearms. But the record shows that Count 3, which charged Mr. Vanvalkenburg with being a felon in possession of a firearm, was dismissed as part of his plea agreement. Cr. Dkt. 21, 25. Rehaif therefore has no applicability to his convictions. I. Conclusion For the foregoing reasons, Mr. Vanvalkenburg's petition for a writ of habeas corpus must be denied. Mr. Vanvalkenburg shall have through February 5, 2021, to show cause why this action should not be dismissed for the reasons explained above. IT IS SO ORDERED.

Date: 1/8/2021 JAMES R. SWEENEY II, JUDGE United States District Court Southern District of Indiana

Distribution: RAYMOND A. VANVALKENBURG 27163-047 TERRE HAUTE - FCI TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 33 TERRE HAUTE, IN 47808