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Johnson v. T.G. Werlich

United States District Court, S.D. Illinois

July 22, 2016

SEDGWICK JOHNSON, #XXXXX-XXX, Petitioner,
v.
T.G. WERLICH, Respondent.

          Sedgwick Johnson, Petitioner, Pro Se.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON, District Judge.

         Petitioner 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. § 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.

         This matter is now before the Court for review of the § 2241 petition pursuant to Rule 4 of the Rules Governing § 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.

         I. Background

         On July 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. § 846, one count of possession with intent to distribute powder cocaine in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 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, criminal case).

         Petitioner 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).

         Petitioner 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 § 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, criminal case).

         Petitioner filed a timely motion to vacate, set aside of correct sentence under 28 U.S.C. § 2255 on April 14, 2014. See Johnson v. United States, No. 14-cv-02917 (N.D. Ill. 2014) ("collateral review"). In the § 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 § 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 § 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 § 2255 case.

(Doc. 22, pp. 17-18, collateral review). The District Court denied the § 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).

         Before commencing the instant habeas action, petitioner requested permission to file a second or successive motion to vacate under § 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 § 2241 petition followed.

         II. Habeas Petition

         Petitioner 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 ...


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