                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-1533

M ICHAEL H ILL,
                                           Petitioner-Appellant,
                               v.

R OBERT W ERLINGER, Warden,
                                           Respondent-Appellee.


          Appeal from the United States District Court
               for the Western District of Wisconsin.
         No. 3:10-cv-00065-bbc—Barbara B. Crabb, Judge.



      A RGUED M AY 29, 2012—D ECIDED A UGUST 21, 2012




  Before W OOD , S YKES, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. 28 U.S.C. § 2241 and 28 U.S.C.
§ 2255 provide federal prisoners with distinct forms of
collateral relief. Section 2255 applies to challenges to the
validity of convictions and sentences, whereas § 2241
applies to challenges to the fact or duration of confine-
ment. See Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir.
2000). A federal prisoner may use a § 2241 petition for
a writ of habeas corpus to attack his conviction or sen-
2                                                No. 11-1533

tence only if § 2255 is “inadequate or ineffective.” 28 U.S.C.
§ 2255(e).
  Michael Hill appeals the district court’s judgment
denying his § 2241 petition, in which he claims that his
sentence was erroneously enhanced under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based
on a battery conviction. Because Hill has not shown
that the remedy under § 2255 is inadequate or ineffec-
tive, we affirm.
   In 1999, Hill was convicted in the United States District
Court for the Northern District of Illinois of possession
with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1);
use of a firearm during and in relation to a drug traf-
ficking crime, 18 U.S.C. § 924(c); and possession of a
firearm by a convicted felon, id. § 922(g)(1). The district
court found that each of Hill’s prior state convictions—
one for attempted murder; two for aggravated bat-
tery—qualified as a career-offender “crime of violence,” see
U.S.S.G. § 4B1.2(a)(1), and a “violent felony” under the
Armed Career Criminal Act (ACCA), see 18 U.S.C.
§ 924(e)(2)(B)(i). Only the second aggravated battery
conviction is at issue here. In 1992 Hill was in a county
courthouse and struck his criminal defense lawyer in
the back of the head with his hand in violation of the
Illinois Revised Statutes, Chapter 38, Section 12-3. The
crime of simple battery was elevated to aggravated
battery because it occurred on public property, id. 12-
4(b)(8). Hill was convicted in 1993 and sentenced to a
four years’ imprisonment.
  Based on the prior convictions, the district court sen-
tenced Hill as a career offender on the drug offense to
No. 11-1533                                                3

216 months’ imprisonment and sentenced him as an
armed career criminal on the felon-in-possession offense
to 216 months’ imprisonment, to run concurrently with
each other and consecutively to a 60-month sentence on
the use of a firearm “during and in relation to” offense,
for a total of 276 months. Hill’s plea agreement con-
tained a waiver of his right to appeal any sentence
within the statutory maximum or to collaterally attack
his sentence or the manner in which it was determined,
including a § 2255 petition.
   The procedural history of Hill’s case gets a little convo-
luted after sentencing, so we will spell out the various
steps along the way to this appeal. In 2000, Hill peti-
tioned the district court in the Northern District of
Illinois to vacate his federal sentence under § 2255,
alleging that his indictment was defective and his trial
counsel was ineffective. The petition was summarily
denied. Hill later filed two motions to modify his sen-
tence pursuant to 18 U.S.C. § 3582, which were also denied.
  In 2010, Hill filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2241 in the Western District
of Wisconsin. He claimed that his classification as a
career offender and armed career criminal was
erroneous and that he was “innocent” of the sentence
enhancements imposed under the ACCA and Career
Offender Guideline, U.S.S.G. § 4B1.1. Specifically, he
challenged whether his aggravated battery convictions
constituted “violent felonies” or “crimes of violence”
under the ACCA and guidelines. The district court denied
the petition, finding that Hill failed to show that the
4                                              No. 11-1533

remedy under § 2255 was foreclosed to him. Hill
appealed and we vacated the district court’s judgment
based on the determination that he had not filed a § 2255
motion in the district of conviction. (As it turns out, we
were wrong about that; he had filed a § 2255 petition
in 2000.) On remand, the district court in the Western
District of Wisconsin transferred the 2010 petition to
the Northern District of Illinois.
  Hill then filed an application in this court, seeking
authorization to file a second or successive § 2255 motion.
He argued, inter alia, that his 1993 aggravated battery
conviction was not a violent felony and should not
have been used to sentence him as an armed career crimi-
nal and career offender. We denied authorization to file
a successive collateral attack under § 2255.
  Meanwhile, Hill moved for reconsideration of the
transfer order, which was granted. The Western District
of Wisconsin district court proceeded to consider his
§ 2241 petition. The court determined that Hill’s two
aggravated battery convictions were under subsec-
tion (1) of 720 ILCS 5/12-3, not subsection (2), and con-
cluded that the convictions constituted “violent felonies.”
Thus, the court decided that Hill’s aggravated battery
convictions were properly used to enhance his sentence
under the ACCA and denied his § 2241 petition. The
court noted Hill’s challenge to his career offender
guideline enhancement, but concluded that his claim
“rises and falls with his career criminal enhancement”
and focused exclusively on that enhancement. Hill
moved for reconsideration, the court denied it, and he
appealed.
No. 11-1533                                                5

  On appeal, Hill no longer challenges the first ag-
gravated battery conviction. He contests only whether
his 1993 aggravated battery conviction for committing
simple battery in a public place constitutes a violent
felony under the ACCA. We review the denial of a § 2241
petition de novo. See Flowers v. Anderson, 661 F.3d 977,
980 (8th Cir. 2011); Barnard v. Henman, 89 F.3d 373, 376
(7th Cir. 1996).
  Under the ACCA, an offender who is convicted under
18 U.S.C. § 922(g) as a felon in possession of a fire-
arm and has three prior convictions for a violent
felony or serious drug offense receives a mandatory
minimum 15-year prison sentence. 18 U.S.C. § 924(e)(1).
The ACCA defines “violent felony” as any crime punish-
able by a year or more in prison that
    (i) has as an element the use, attempted use, or
    threatened use of physical force against the
    person of another; or
    (ii) is burglary, arson, or extortion, involves use
    of explosives, or otherwise involves conduct that
    presents a serious potential risk of physical
    injury to another.
Id. § 924(e)(2)(B). Thus, for a prior conviction to be con-
sidered a “violent felony” for purposes of the ACCA
sentencing enhancement, it must be a crime that “has as
an element the use, attempted use, or threatened use
of physical force” against another, belongs to the list of
enumerated offenses, or otherwise involves conduct
presenting “a serious potential risk of physical injury.” See
18 U.S.C. § 924(e)(2)(B)(i) and (ii). In Johnson v. United
6                                               No. 11-1533

States, 130 S. Ct. 1265 (2010), the Supreme Court inter-
preted “physical force” as used in the ACCA definition
of “violent felony” to mean “violent force—that is, force
capable of causing physical pain or injury to another
person.” Id. at 1271.
   Hill claims that his 1993 conviction for aggravated
battery causing bodily harm does not have as an
element violent force and therefore does not count as
“violent felony” under the ACCA. Respondent argues
that Hill waived any right to collaterally attack his sen-
tence. That may be. But respondent, by failing to raise
the defense of waiver in the district court, has forfeited
it. See, e.g., Canaan v. McBride, 395 F.3d 376, 382 (7th Cir.
2005). Although we could address the forfeited argu-
ment, see Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012)
(noting appellate court’s authority to address sua sponte
a forfeited timeliness-of-a-habeas-petition defense),
respondent has presented nothing to show that this is
an “exceptional case” in which we should base our deci-
sion on a forfeited ground, see id. And, as we shall
see, Hill’s petition fails on another ground anyway.
  In general, “§ 2255 is the exclusive means for a federal
prisoner to attack his conviction” or sentence. See Kramer
v. Olson, 347 F.3d 214, 217 (7th Cir. 2003) (per curiam).
However, in a narrow class of cases, under § 2255’s
“savings clause,” a federal prisoner may bring a § 2241
petition if he can show that the § 2255 remedy “is inade-
quate or ineffective to test the legality of his detention.”
Unthank v. Jett, 549 F.3d 534, 535 (7th Cir. 2008) (quoting
§ 2255(e)). “Inadequate or ineffective” means that “a
No. 11-1533                                                7

legal theory that could not have been presented under
§ 2255 establishes the petitioner’s actual innocence.”
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); see also
In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998).
  We considered the meaning of “inadequacy” in Daven-
port and said that “[a] procedure for postconviction
relief can fairly be termed inadequate when it is so con-
figured as to deny a convicted defendant any oppor-
tunity for judicial rectification of so fundamental a
defect in his conviction as having been imprisoned
for a nonexistent offense.” 147 F.3d at 611. One of the
petitioners, Nichols, sought relief from his conviction
for using a firearm in the commission of a drug offense,
see 18 U.S.C. § 924(c)(1). When Nichols was convicted
and brought his first § 2255 motion, the settled law of
the circuit was that mere possession of a firearm was
sufficient to constitute “use” under the statute. After
his direct appeal and denial of his initial § 2255 motion,
the Supreme Court decided Bailey v. United States, 516
U.S. 137, 143 (1995), holding that “use” in § 924(c)(1) “does
not include mere possession.” Nichols filed another
motion for postconviction relief. Davenport, 147 F.3d at
607. He had a claim that he was imprisoned “for a nonex-
istent crime,” id. at 610, but he could not have presented
the claim in his direct appeal, first § 2255 motion, or a
successive § 2255 petition. Id. at 610-11. (A successive
§ 2255 motion is allowed if a petitioner offers newly
discovered evidence that would establish that he is not
guilty, or a new rule of constitutional law made retro-
active to cases on collateral review by the Supreme
Court. See id. at 607.)
8                                               No. 11-1533

  We held that § 2255 was inadequate to test the legality
of his detention and he could seek relief under § 2241. Id.
at 610-11. In doing so, we explained that “[a] federal
prisoner should be permitted to seek habeas corpus only
if he had no reasonable opportunity to obtain earlier
judicial correction of a fundamental defect in his convic-
tion or sentence because the law changed after his first
2255 motion.” Id. at 611. The rule has three qualifications.
First, the “the change of law has to have been made
retroactive by the Supreme Court.” Id. Second, “it must
be a change that eludes the permission in section 2255
for successive motions.” Id. Third, “ ‘change in law’ is
not to be equated to a difference between the law in
the circuit in which the prisoner was sentenced and the
law in the circuit in which he is incarcerated.” Id. at 612.
  Hill can satisfy the second requirement: His claim is
not based on newly discovered evidence or on a new
rule of constitutional law; it is based on the Supreme
Court’s interpretation of “violent felony” in Johnson. But
he cannot show that a § 2255 remedy is inadequate or
ineffective. He has failed to show that his claim could
not have been presented in his direct appeal or § 2255
motion.
   In Morales v. Bezy, 499 F.3d 668 (7th Cir. 2007), we
determined that the petitioner could not show that his
§ 2255 remedy was inadequate or ineffective because his
claim was not foreclosed by binding precedent. Id. at
672. We concluded that “the fact that a position is novel
does not allow a prisoner to bypass section 2255. . . . Only
if the position is foreclosed (as distinct from not being
No. 11-1533                                                 9

supported by—from being, in other words, novel) by
precedent” is a § 2255 remedy inadequate. See id.; see also
Davenport, 147 F.3d at 610 (concluding that petitioner
had no reasonable opportunity on direct appeal or in
his first 2255 petition to challenge the legality of his
conviction where “[t]he law of the circuit was so firmly
against him that we have held that in that period defen-
dants in this circuit did not have to raise [the] issue in
order to preserve it as a basis for collateral attack
later on”).
  Hill has not argued that binding precedent foreclosed
his claim that his 1993 aggravated battery conviction
did not constitute a violent felony under the ACCA
because physical force is not an element of battery
causing bodily harm under Illinois law. Instead, he
asserts that before Johnson, the law was unclear re-
garding what amount of force was necessary to
constitute a “violent felony” under the ACCA. Any lack
of clarity in the law before Johnson did not prevent Hill
from bringing his claim either in a direct appeal or in
his § 2255 motion. Furthermore, Johnson did not change
the law so as to interpret “physical force” in the ACCA’s
definition of “violent felony” in a way that Hill would
have a claim that his sentence was enhanced based
on nonexistent violent felony. Accordingly, he cannot
prevail on his § 2241 petition.1



1
  If there was ever a case to apply the concurrent sentence
doctrine, under which an appellate court may decline to review
                                                (continued...)
10                                                      No. 11-1533

  And if we were to reach the merits, we would affirm.
The first prong of the Illinois battery statute under
which Hill was convicted reads: “A person commits
battery if he intentionally or knowingly without legal
justification and by any means, (1) causes bodily harm
to an individual. . . .” Ill. Rev. Stat., ch. 38, ¶ 12-3(a)(1)
(now codified as 720 ILCS 5/12-3(a)(1)).2 Simple battery
is treated as a felony aggravated battery if one of several
aggravating factors is present. See id. 5/12-4. Hill was
convicted of simple battery which was elevated to
felony aggravated battery because the person battered
was on public property. See id. 5/12-4(b)(8). In Johnson,
the Supreme Court held that as long as a felony convic-
tion has as an element the use, attempted use, or threat-
ened use of “force capable of causing physical pain
or injury to another person,” the conviction constitutes
a “violent felony” under the ACCA. 130 S. Ct. at 1271.
The second amended information charged that in 1992
“Hill committed the offense of AGGRAVATED BATTERY
in that [he] . . . in committing a battery, . . . , without legal


1
  (...continued)
a challenge to a conviction if the sentence on that conviction
runs concurrent to an equal or longer sentence on an unchal-
lenged or affirmed conviction and there is no adverse
collateral consequences to the defendant, see 13C Charles Alan
Wright et. al., Federal Practice and Procedure: Jurisdiction § 3533.4.2
(3d ed. 2011), this may be it. But we need not rely on the
doctrine since the petition fails on another ground.
2
  Illinois recodified its battery statute since Hill’s convictions
but the relevant language is essentially the same.
No. 11-1533                                                 11

justification and w[h]ile Janet Glick was at the
Winnebago County Courthouse, a public property,
caused bodily harm to Janet Glick in that he struck Janet
Glick in the back of her head with his hand. . . .” Thus, the
information tracked the language of the first prong of
the battery statute, 720 ILCS 5/12-3(a)(1). Consistent with
the charge, the jury instruction on the elements of the
offense stated that the State had to prove, inter alia,
that Hill “intentionally caused bodily harm,” also tracking
the language of the first prong. Therefore, it is clear
that Hill was charged and convicted under the first
prong of the battery statute.
  We have previously decided that a conviction under
the first prong of the Illinois battery statute, 720 ILCS 5/12-
3, which requires that the person “causes bodily harm,”
has as an element “the use, attempted use, or threatened
use of physical force.” See United States v. Rodriguez-Gomez,
608 F.3d 969, 973-74 (7th Cir. 2010) (holding that prior
conviction for aggravated battery based on simple
battery causing bodily harm under first prong of the
statute is a “crime of violence” warranting a sentencing
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)); United
States v. Aviles-Solarzano, 623 F.3d 470, 474 (7th Cir. 2010)
(same); De Leon Castellanos v. Holder, 652 F.3d 762, 764-67
(7th Cir. 2011) (holding conviction for domestic battery
causing bodily harm in violation of 720 ILCS 5/12-3.2(a)(1)
qualifies as a “crime of violence” under 18 U.S.C. § 16(a)).3



3
  Like the ACCA’s definition of “violent felony,” U.S.S.G.
§ 2L1.2 defines “crime of violence” to include “any . . .
                                             (continued...)
12                                                 No. 11-1533

Accordingly, Hill’s 1993 conviction for aggravated
battery qualifies as a “violent felony” under the ACCA.
  All that said, the petition fails on a preliminary ground:
Hill cannot show that the § 2255 remedy is inadequate
or ineffective to test the legality of his detention.
   The district court’s judgment denying habeas relief
is A FFIRMED.




3
   (...continued)
offense . . . that has as an element the use, attempted use, or
threatened use of physical force against the person of another,”
id. cmt. n. 1(B)(iii), and § 16(a) defines “crime of violence”
to include “an offense that has as an element the use,
attempted use, or threatened use of physical force against
the person . . . of another.”


                             8-21-12
