United States District Court, S.D. Illinois
ODELL DOBBS, No. 06678-090, Petitioner,
T.G. WERLICH, Defendant.
MEMORANDUM AND ORDER
R. Herndon Judge.
Odell Dobbs, a federal prisoner incarcerated at
FCI-Greenville, brings this action for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Petitioner is
challenging the validity his 2008 sentence, imposed by the
United States District Court for the Western District of
Wisconsin, for possessing with intent to distribute 50 grams
or more of crack cocaine, in violation of 21 U.S.C. §
841(a)(1). The Petition is premised on the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016).
matter is now before the Court for a preliminary review of
the Petition. Rule 4 of the Rules Governing Section 2254
Cases provides that, upon preliminary review by the district
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, such as this action.
pleaded guilty to distribution of crack, 21 U.S.C. §
841(a)(1), and was sentenced to 262 months' imprisonment.
U.S. v. Dobbs, 333 Fed.Appx. 126, 127 (7th Cir.
2009) (unpublished). Based on two prior felony convictions,
one for delivery of cocaine and the second for aggravated
battery to a police officer, Petitioner was sentenced as a
career offender pursuant to U.S.S.G. § 4B1.1(a).
Id. Petitioner's predicate controlled substance
offense was premised on a 2002 Illinois conviction for
unlawful delivery of cocaine in violation of 720 ILCS
520/401. (Doc. 1, p. 2). See also Dobbs v. U.S. No.
3:10-cv-584 (W.D. Wisc.) (Doc. 3, p. 3). Petitioner's
conviction and sentence were affirmed on appeal. U.S. v.
Dobbs, 333 Fed.Appx. 126, 127 (7th Cir. 2009)
(unpublished). Petitioner has previously filed a motion under
28 U.S.C. § 2255. See Dobbs v. U.S. No.
3:10-cv-584-BBC (W.D. of Wisc. 2010). That petition, alleging
ineffective assistance of counsel, was dismissed by the
Western District of Wisconsin and the Seventh Circuit denied
issuance of a Certificate of Appealability. Id.
instant § 2241 petition challenges the validity of
Petitioner's sentence after Mathis v. United
States, 136 S.Ct. 2243 (2016). Petitioner contends that
under Mathis he no longer qualifies as a career
offender. Specifically, Petitioner argues that his Illinois
conviction for delivery of cocaine no longer counts as a
qualified predicate offense for career offender purposes.
is challenging the validity of the sentence imposed by the
district court, and therefore would ordinarily be required to
bring his claim as a § 2255 motion rather than a §
2241 petition. See Hill v. Werlinger, 695 F.3d 644,
645 (7th Cir. 2012) (“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 confinement.”); Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012). He may only petition under 28
U.S.C. § 2241 if the remedy provided under § 2255
“is inadequate or ineffective to test the legality of
his detention.” See 28 U.S.C. § 2255(e) (which is
often referred to as “the Savings Clause”).
In re Davenport, 147 F.3d 605 (7th Cir. 1998), the
Seventh Circuit held that collateral relief is available to a
federal prisoner under § 2241 “only if he had no
reasonable opportunity to obtain earlier judicial correction
of a fundamental defect in his conviction or sentence because
the law changed after his first 2255 motion.”
Id. at 611. A federal prisoner must meet three
criteria in order to invoke the Savings Clause and obtain
collateral relief pursuant to § 2241. First, a prisoner
“must show that he relies on a [new]
statutory-interpretation case rather than a constitutional
case;” second, he “must show that he relies on a
retroactive decision that he could not have invoked in his
first § 2255 motion;” and third, “[the]
sentence enhancement [must] have been a grave enough error to
be deemed a miscarriage of justice corrigible therefore in a
habeas corpus proceeding.” Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013) (citations omitted)
(internal quotation marks omitted).
instant Petition meets the first requirement. See Dawkins
v. United States, 829 F.3d 549, 551 (7th Cir. 2016)
(Because Mathis “is a case of statutory
interpretation, ” claims based on Mathis
“must be brought, if at all, in a petition under 28
U.S.C. § 2241.”); Jenkins v. United
States, No. 16-3441 (7th Cir. Sept. 20, 2016) (“Mathis
is not amenable to analysis under § 2244(b) because it
announced a substantive rule, not a constitutional
Petition also meets the second requirement. As noted above,
the Seventh Circuit has indicated that Mathis is a
substantive rule. Jenkins v. United States, No.
16-3441 (7th Cir. Sept. 20, 2016). Controlling precedent
indicates that substantive Supreme Court rules are applied
retroactively. See Narvaez v. United States, 674
F.3d 621, 625 (7th Cir. 2011); Montana v. Cross, 829
F.3d 775, 783 (7th Cir. 2016).
Court, however, cannot ascertain whether the third
requirement is met. In Mathis, the Supreme Court
held that Iowa's burglary statute did not qualify as a
predicate violent felony under the Armed Career Criminal Act
(“ACCA”) because it was broader than the
“generic” offense of burglary in §
924(e)(2)(B)(ii). Thus, Mathis focused on what
constitutes a prior violent felony under the ACCA. Petitioner
was sentenced under the Career Offender portion of the
Sentencing Guidelines. The Guidelines' definition of a
prior “crime of violence” parallels the
definition of “violent felony” under the ACCA.
U.S.S.G. § 4B1.2(a). However, at issue here, is the
definition of “controlled substance offense”
found in § 4B1.2(b). Determining whether a prior
conviction for a controlled substance offense is a qualifying
predicate offense under Sentencing Guideline § 4B1.2(b)
does not seem to require comparing the elements of the
offense with any “generic” controlled substance
the above, the Court is inclined to find that Mathis
does not invalidate Plaintiff's predicate controlled
substance offense. If Mathis does not invalidate
Plaintiff's predicate controlled substance offense, there
is no grave error constituting a miscarriage of justice and
the Petition must be dismissed. However, at this stage in the
litigation, the Court finds it prudent to allow
Petitioner's claim to proceed. That is, during its
initial review, the Court declines to find that
Petitioner's Mathis claim is without merit.
Therefore, the Court ORDERS respondent Werlich to file a
response to the Petition.
HEREBY ORDERED that respondent shall answer the petition or
otherwise plead within thirty days of the date this order is
entered. This preliminary order to respond does not, of
course, preclude the State from making whatever waiver,
exhaustion, or timeliness argument it may wish to present.
Service upon the United States Attorney for the Southern
District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois shall constitute sufficient service.
FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford
J. Proud for further pre-trial proceedings.
FURTHER ORDERED that this entire matter be REFERRED to United
States Magistrate Judge Clifford J. Proud for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §