Lorenzo D. Roundtree v. JEFFREY E. KRUEGER, Warden, United States Penitentiary, Terre Haute

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3696
LORENZO D. ROUNDTREE,
Petitioner-Appellant,
v.
JEFFREY E. KRUEGER, Warden, United States Penitentiary,
Terre Haute,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:14-cv-00284-JMS-DKL — Jane E. Magnus-Stinson, Chief Judge.
____________________
ARGUED NOVEMBER 14, 2018 — DECIDED DECEMBER 6, 2018
____________________
Before EASTERBROOK, SYKES, and SCUDDER, Circuit Judges.
EASTERBROOK, Circuit Judge. Lorenzo Roundtree was sen-
tenced to life in prison for selling heroin that led to a user’s
death. 21 U.S.C. §841(b)(1)(C). Seven years later the Supreme
Court held that a judge must tell a jury that the death-
resulting condition is satisfied only if the drug was a but-for
cause of the fatality; a contributing cause is not enough. Bur-
rage v. United States, 571 U.S. 204 (2014). The charge to the

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jury at Roundtree’s trial did not satisfy Burrage, and he filed
collateral agacks on his sentence in both the Northern Dis-
trict of Iowa (where his trial occurred) and the Southern Dis-
trict of Indiana (where he is confined). The collateral agack
in Iowa rests on 28 U.S.C. §2255 and the one in Indiana on 28
U.S.C. §2241. Both district judges rejected his contentions.
We put this appeal on hold while the Eighth Circuit consid-
ered Roundtree’s appeal in the §2255 proceeding.
After some intermediate steps that we need not recount,
the Eighth Circuit held that, because Burrage is retroactive,
Roundtree is entitled to use §2255 to contest his conviction
despite the lapse of time, but that his failure to dispute the
jury instruction at trial forfeited any benefit from a later de-
cision by the Supreme Court. Roundtree v. United States, 885
F.3d 1095 (8th Cir. 2018). The Eighth Circuit recognized that
a procedural default may be excused if the accused is inno-
cent, see Bousley v. United States, 523 U.S. 614, 623–24 (1998),
but found that Roundtree had not met that requirement: he
complains about a deficient instruction rather than a convic-
tion on insufficient evidence. He has not argued in the
Eighth Circuit (or here) that a properly instructed jury
would have been compelled to acquit him of either selling
heroin or the death-results enhancement. The Eighth Circuit
also concluded that Roundtree was not prejudiced by the er-
ror, because he was sure to have been convicted even under
the instruction required by Burrage.
We then reactivated the appeal in this circuit, and the
parties filed briefs addressing the significance of the Eighth
Circuit’s decision. Roundtree asks us to ignore it and make
an independent decision; the Warden contends that the
Eighth Circuit’s decision is conclusive.

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No. 14-3696 3
Section 2241 authorizes federal courts to issue writs of
habeas corpus, but §2255(e) makes §2241 unavailable to a
federal prisoner unless it “appears that the remedy by mo-
tion [under §2255] is inadequate or ineffective to test the le-
gality of [the] detention.” This court has held that §2255 is
“inadequate or ineffective” when it cannot be used to ad-
dress novel developments in either statutory or constitution-
al law, whether those developments concern the conviction
or the sentence. See, e.g., In re Davenport, 147 F.3d 605 (7th
Cir. 1998); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013);
Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc).
Some circuits have agreed with us, while others have not.
See, e.g., McCarthan v. Director, 851 F.3d 1076 (11th Cir. 2017)
(en banc); Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011)
(Gorsuch, J.). The Solicitor General has asked the Supreme
Court to resolve the conflict. See United States v. Wheeler, No.
18–420 (petition filed Oct. 3, 2018). But this appeal does not
depend on the outcome of Wheeler, because none of this cir-
cuit’s decisions—and none in the circuits that agree with
Davenport, Brown, and Webster—permits relitigation under
§2241 of a contention that was actually resolved in a pro-
ceeding under §2255, unless the law changed after the initial
collateral review.
Roundtree does not contend that the law has changed in
the slightest after the Eighth Circuit rejected his contentions.
He seeks relief under a decision the Supreme Court made in
2014, not under any development postdating the Eighth Cir-
cuit’s decision. Roundtree recognizes that this circuit already
has stated that Burrage cannot be used to litigate under §2241
if §2255 could have been (or was) used to raise the issue. See
PrevaDe v. Merlak, 865 F.3d 894, 897 (7th Cir. 2017). Round-
tree asks us to reconsider, contending that life in prison is

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4 No. 14-3696
such a harsh punishment that procedural bars should be
swept away. Yet we lack authority to create exceptions to
statutes. Section 2255(e) prevents resort to §2241 unless
§2255 is “inadequate or ineffective” to test the validity of a
conviction or sentence. The Eighth Circuit’s decision shows
that §2255 afforded a means to address Roundtree’s argu-
ments. His problem lies not in §2255 but in his own failure to
object at trial, plus the Eighth Circuit’s conclusion that an
instruction comporting with Burrage would not have affected
the outcome.
Until 1996, when the Antiterrorism and Effective Death
Penalty Act (AEDPA) amended §2255, a petition could be
filed in the sentencing court at any time—and multiple peti-
tions could be filed, provided they did not abuse the writ.
The 1996 Act added §2255(f), which set a one-year time limit
on petitions but also restarts the time if the Supreme Court
changes the law with retroactive effect (§2255(f)(3)). The
1996 Act also added §2255(h), which limits second or subse-
quent petitions. Neither of these changes affected Roundtree,
who was able to use extra time under §2255(f)(3) to file his
initial §2255 motion in Iowa. What he now wants is to use
§2241 in circumstances that would have been called an abuse
of the writ before the 1996 Act replaced that common-law
doctrine with §2255(f) and (h). An agempt to relitigate a the-
ory, in the absence of an intervening change of law, was tak-
en as a paradigm abuse of the writ. See, e.g., Salinger v. Loisel,
265 U.S. 224 (1924); Wong Doo v. United States, 265 U.S. 239
(1924); Sanders v. United States, 373 U.S. 1, 17–18 (1963). The
1996 changes were designed to curtail relitigation of collat-
eral agacks, yet Roundtree wants something that would
have been unavailable even before 1996. That’s not permissi-
ble. See In re Page, 179 F.3d 1024 (7th Cir. 1999), which says

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No. 14-3696 5
that arguments that would have abused the writ before 1996
also cannot be raised after the amendments.
Roundtree litigated and lost in the Eighth Circuit. The
Supreme Court of the United States, not another court of ap-
peals, is the right forum for his argument that the Eighth
Circuit erred. Cf. Christianson v. Colt Industries Operating
Corp., 486 U.S. 800 (1988).
AFFIRMED

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