Case: 14-1501

Document: 13

Filed: 04/21/2014

Pages: 2

United States Court of Appeals

For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 3, 2014
Decided April 21, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-1501
CODY F. ELLERMAN,
Petitioner-Appellant,
v.
JEFFERY S. WALTON,
Respondent-Appellee.

Appeal from the United States District

Court for the Southern District of
Illinois.
No. 3:13-cv-00063-CJP
Clifford J. Proud,
Magistrate Judge.
ORDER

In 2003 Cody Ellerman pleaded guilty to possessing a firearm as a felon, see 18

U.S.C. 922(g)(1), and was sentenced as an armed career criminal, see id. 924(e), to 262
months imprisonment, see United States v. Ellerman, No. 1:02-cr-10029-DDD-JDK-1
(W.D. La. Aug. 9, 2004); he did not appeal. Since his conviction, however, Ellerman has
attacked his sentence, specifically the ACCA enhancement he received, in a bevy of
collateral proceedings. He first pursued relief under 28 U.S.C. 2255, but the district
court dismissed his motion as untimely, and the Fifth Circuit concluded that his notice
of appeal from that decision was also not timely filed. See Ellerman v. United States, No.
08-30843 (5th Cir. Jul. 8, 2009). Ellerman then filed several motions that the district court
construed as successive motions under 2255 and transferred to the Fifth Circuit, which
denied Ellerman authorization. See Ellerman v. United States, No. 10-30482 (5th Cir. Jul. 14,
2010). About a year later the Fifth Circuit denied Ellermans second application for

Case: 14-1501

No. 14-1501

Document: 13

Filed: 04/21/2014

Pages: 2

Page 2

authorization to file a successive collateral attack. See In re Cody Ellerman, No. 11-30810
(5th Cir. Nov. 10, 2011).
Having found no relief in the Fifth Circuit, Ellerman raised his challenge to his
ACCA enhancement in a petition under 28 U.S.C. 2241 filed in the Southern District of
Illinois. But the district court concluded that Ellerman could not demonstrate that he
was actually innocent of his conviction and thus could not challenge his sentence under
2241. See Ellerman v. Hollingsworth, No. 3:10-cv-00860-GPM (S.D. Ill. Dec. 14, 2010).
After that 2241 petition was denied, this court decided Narvaez v. United States, 674
F.3d 621 (7th Cir. 2011), and Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013), opening the
door for prisoners to claim actual innocence of sentencing enhancements, and Ellerman
filed a second 2241 petition. The district court however again denied relief and
Ellerman now appeals.
Ellermans frustration with his inability to obtain relief is understandable given
that he is correct, on the merits, that he never should have been sentenced as an armed
career criminal. His prior drug convictions were all for selling marijuana in Kansas,
see KANS. STAT. 65-4163(a)(3), and as level 3 felonies, did not subject him to a statutory
maximum of at least ten years, see id. 21-6805. Accordingly, those convictions did not
qualify as serious drug offenses under 18 U.S.C. 924(e)(2)(A)(ii), and Ellerman
should not have been sentenced as an armed career criminal. His statutory maximum
for possessing a firearm was therefore only 120 months, see id. 924(a)(2), substantially
less than the 262 months Ellerman received. The district court that dismissed Ellermans
initial 2255 motion noted as much, but ultimately concluded that his motion was
untimely. Because Ellerman could have raised, and in fact did raise, his current
challenge in his initial 2255 motion he cannot demonstrate that 2255 is inadequate,
and this court is not empowered to correct the sentencing error. See 28 U.S.C. 2255(e).
That is the case even though Ellermans initial 2255 motion was doomed from the start
as untimely because [a] prisoner cannot be permitted to lever his way into section 2241
by making his section 2255 remedy inadequate. Morales v. Bezy, 499 F.3d 668, 672 (7th
Cir. 2007).
Having fallen victim to the procedural complexity of collateral attacks, Ellerman
is out of judicial remedies. But he may consider asking the President for a pardon or to
commute his sentence. We, however, must AFFIRM the district courts judgment. We
also DENY Ellermans motion to proceed in forma pauperis.