UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION

KENNETH WATFORD, ) ) Petitioner, ) ) v. ) No. 2:20-cv-00032-JPH-MJD ) B. LAMMER, ) ) Respondent. )

Order Dismissing Action and Directing Entry of Final Judgment

Petitioner, Kenneth Watford, an inmate currently incarcerated at the Federal Correctional Institution in Terre Haute, Indiana, seeks a writ of habeas corpus pursuant to

. For the reasons explained below, his petition for a writ of habeas corpus is denied. I. Factual and Procedural Background In November 2014, Mr. Watford was charged in the District of Maryland with 13 offenses related to identity theft and fraud. See United States v. Watford, Case No. 8:12-cr-00623-PJM-3 (D. MD.) ("Crim. Dkt."), dkt. 164. A jury convicted Mr. Watford of 12 of the 13 counts. Crim. Dkt. 220. He received a sentence of 135 months' imprisonment and five years' supervised release. Crim. Dkt. 265. Mr. Watford's motions for a new trial were denied and his direct appeal was dismissed. Dkt. 35 at 3. He then filed a motion to vacate his sentence under

, arguing that he was unlawfully arrested and detained.

In October 2019, a Maryland state court judge ordered the "expungement of police records pertaining to" Mr. Watford's arrest on July 27, 2012, by state law enforcement officers. See dkt. 42 at 4.

In January 2020, Mr. Watford filed this § 2241 petition alleging that his federal conviction is invalid because the expungement of the police records from 2012 was based on a finding of lack of probable cause and lack of an arrest warrant. Dkt. 1. In January 2021, Mr. Watford filed a motion in the District of Maryland, arguing that he is entitled to be resentenced because the record of his arrest was expunged. Dkt. 35 at 3-4. II. Availability of Relief Under Section 2241

A motion pursuant to

is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Shepherd v. Krueger,

(7th Cir. 2018); Webster v. Daniels,

(7th Cir. 2015) (en banc). Under very limited circumstances, however, a prisoner may employ § 2241 to challenge his federal conviction or sentence. Webster,

. Specifically, under § 2255(e), a federal prisoner may seek relief under § 2241 only if it "appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of [the] detention."

(e); Roundtree v. Krueger,

(7th Cir. 2018). The Seventh Circuit has held that § 2255 is "'inadequate or ineffective' when it cannot be used to address novel developments in either statutory or constitutional law, whether those developments concern the conviction or the sentence." Roundtree, 719 F.3d at 313 (citing In re Davenport,

(7th Cir. 1998); Brown v. Caraway,

(7th Cir. 2013); Webster v. Daniels,

(7th Cir. 2015) (en banc)). Whether § 2255 is inadequate or

ineffective "focus[es] on procedures rather than outcomes." Taylor v. Gilkey,

(7th Cir. 2002). The Seventh Circuit construed § 2255(e), referred to as the "savings clause," in In re Davenport, holding: 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,

. "[S]omething more than a lack of success with a section 2255 motion must exist before the savings clause is satisfied." Webster,

. Specifically, to fit within the savings clause, "a petitioner must establish that '(1) the claim relies on a statutory interpretation case, not a constitutional case, and thus could not have been invoked by a successive § 2255 motion; (2) the petitioner could not have invoked the decision in his first § 2255 motion and the decision applies retroactively; and (3) the error is grave enough to be deemed a miscarriage of justice.'" Chazen v. Marske,

(7th Cir. 2019) (quoting Beason v. Marske,

(7th Cir. 2019)); see also Roundtree,

(acknowledging a circuit split regarding this test and holding that relitigation under § 2241 of a contention that was resolved in a proceeding under § 2255 is prohibited unless the law changed after the initial collateral review). If a petitioner cannot meet all three conditions, he is not entitled to proceed under § 2241. See, e.g., Davis v. Cross,

, 964— 65 (7th Cir. 2017) (affirming denial of relief under § 2241 because petitioner could not establish third requirement). Here, Mr. Watford does not rely on a new case of statutory interpretation, has not identified a "structural problem" with § 2255 that would have prevented him from raising the arguments that he asserts in his § 2241 petition in a § 2255 petition and he has not shown a miscarriage of justice. Nor does he explain how a state court order expunging police records pertaining to his arrest invalidates his federal conviction. III. Conclusion Based on the foregoing, Kenneth Watford's petition for a writ of habeas corpus pursuant to

is denied. The dismissal of this action is with prejudice. Prevatte v. Merlak,

(7th Cir. 2017) ("[Pletition should be dismissed with prejudice under

/(e)."). Mr. Watford's motion for preliminary injunction, dkt. [33], and motion to grant motion for preliminary injunction, dkt. [39], are denied. Mr. Watford's motion to supplement the record, dkt. [47], is granted. SO ORDERED. Date: 9/30/2021

James Patrick Hanlon United States District Judge Southern District of Indiana

Distribution:

KENNETH WATFORD 56252-037 TERRE HAUTE - FCI TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 33 TERRE HAUTE, IN 47808

Brian L. Reitz UNITED STATES ATTORNEY'S OFFICE (Indianapolis) [email protected]