United States District Court, S.D. Illinois
Sedgwick Johnson, Petitioner, Pro Se.
MEMORANDUM AND ORDER
R. HERNDON, District Judge.
Sedgwick Johnson, who is currently incarcerated in the
Federal Correctional Institution in Greenville, Illinois
("FCI-Greenville"), brings this habeas corpus
action pursuant to 28 U.S.C. Â§ 2241. Petitioner challenges
his enhanced sentence as a career offender following his
conviction for three drug-related crimes in the United States
District Court for the Northern District of Illinois. See
United States v. Cooper, No. 01-cr-00543-3 (N.D. Ill.
2001). He seeks resentencing.
matter is now before the Court for review of the Â§ 2241
petition pursuant to Rule 4 of the Rules Governing Â§ 2254
Cases in United States District Courts, which provides that
upon preliminary consideration by the district court judge,
"[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner."
Rule 1(b) of those Rules gives this Court the authority to
apply the rules to other habeas corpus cases. The Petition
(Doc. 1) does not survive preliminary review under this
standard and shall be dismissed.
21, 2001, a federal grand jury charged petitioner and two
co-defendants with one count of conspiracy to possess with
intent to distribute crack cocaine and powder cocaine in
violation of 21 U.S.C. Â§ 846, one count of possession with
intent to distribute powder cocaine in violation of 21 U.S.C.
Â§ 841(a)(1), and one count of possession with intent to
distribute crack cocaine in violation of 21 U.S.C. Â§
841(a)(1). See United States v. Cooper, No.
01-cr-00543-3 (N.D. Ill. 2001) ("criminal case")
(Doc. 17). Following a jury trial, all three defendants were
found guilty of all three counts on October 22, 2002. (Doc.
84, criminal case). On January 30, 2003, petitioner was
sentenced to a term of 360 months' imprisonment followed
by a five-year term of supervised release. (Doc. 112,
filed a timely appeal to the Seventh Circuit Court of
Appeals. (Doc. 105, criminal case). On May 4, 2005, the
Seventh Circuit ordered a limited remand for reconsideration
of his sentence in light of United States v. Booker,
543 U.S. 220 (2005), and United States v. Paladino,
401 F.3d 471 (7th Cir. 2005). (Doc. 144, criminal case).
After considering the matter, the District Court advised the
Seventh Circuit that it would impose the same sentence, and
on June1, 2007, the Seventh Circuit affirmed petitioner's
sentence. See United States v. Johnson, 240 F.Appx.
131 (7th Cir. 2007); (Doc. 160, criminal case).
next filed a petition for writ of certiorari to the United
States Supreme Court. On February 12, 2008, the Supreme Court
vacated the judgment and remanded the case to the Seventh
Circuit for further consideration of the sentence in light of
Kimbrough v. United States, 552 U.S. 85 (2007).
See Johnson v. United States, 552 U.S. 1091
(2008). In turn, the Seventh Circuit remanded the case to the
District Court with instructions to advise it whether
petitioner's sentence would have been different if the
District Court had known that it had discretion to deviate
from the career offender guidelines after determining that
the crack/powder disparity imposed by the Sentencing
Guidelines yielded a sentence greater than necessary to
achieve Â§ 3553(a)'s purposes. United States v.
Johnson, No. 13-1322 (7th Cir. Apr. 26, 2013); (Doc.
191, criminal case). The District Court again concluded that
it would impose the same sentence, if the case was remanded
for resentencing. (Doc. 196, criminal case). On October 25,
2013, the Seventh Circuit affirmed. United States v.
Johnson, 535 F.Appx. 534 (7th Cir. 2013); (Doc. 198,
filed a timely motion to vacate, set aside of correct
sentence under 28 U.S.C. Â§ 2255 on April 14, 2014. See
Johnson v. United States, No. 14-cv-02917 (N.D. Ill.
2014) ("collateral review"). In the Â§ 2255 motion,
petitioner argued that his conviction and sentence should be
vacated because his trial counsel was ineffective and the
court improperly categorized him as a career offender under
the Sentencing Guidelines. With respect to his latter
argument, the District Court stated:
Johnson's final claim, and his only claim that does not
relate to the performance of his counsel, is that the court
erroneously considered his prior convictions in deciding to
sentence him as a career offender. Again, however, the court
need not reach the merits of Johnson's claim because the
Seventh Circuit has repeatedly held that "the erroneous
determination that the petitioner was a career offender in
calculating his sentence [is] not a cognizable error under Â§
2255 post- Booker. United States v.
Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (citing
Hawkins v. United States, 706 F.3d 820, 823-25 (7th
Cir. 2013)). As discussed earlier in this opinion, the court
reimposed its original sentence after considering
Booker 's holding that the Guidelines are not
binding on a district court judge, ( see Crim. Dkt.
No. 157), and after considering Kimbrough 's
holding that a district judge may deviate from the career
offender guideline if the judge determines that the
crack/powder disparity imposed by the Guidelines yields a
sentence greater than necessary to achieve Â§ 3553(a)'s
purposes. The Seventh Circuit affirmed the court's
sentence. (Crim. Dkt. No. 198.) Accordingly, even if the
court erred in applying the career offender guideline in
Johnson's criminal case, the claim is not cognizable in
his Â§ 2255 case.
(Doc. 22, pp. 17-18, collateral review). The District Court
denied the Â§ 2255 motion on May 25, 2015. ( Id. ).
Petitioner's appeal of this decision is currently
pending. Johnson v. United States, No. 15-2896 (7th
Cir. Sept. 1, 2015).
commencing the instant habeas action, petitioner requested
permission to file a second or successive motion to vacate
under Â§ 2255. Johnson v. United States, No. 16-2101
(7th Cir. May 11, 2016). Petitioner sought leave to challenge
his sentence as a career offender under Johnson v. United
States, 135 S.Ct. 2551 (2015). The Seventh Circuit
denied the application on June 9, 2016. (Doc. 5). The instant
Â§ 2241 petition followed.
asks this Court to vacate his sentence. (Doc. 1, p. 5). He
relies on two recent decisions of the United States Supreme
Court, i.e., Johnson v. United States, 135 S.Ct.
2551 (June 26, 2015), and Welch v. United States,136 S.Ct. 1257 (April 18, 2016). Petitioner asserts that
Johnson and Welch create a "vagueness