United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon UNITED STATES DISTRICT JUDGE
Justin W. Kennedy, who is currently incarcerated in the
Federal Correctional Institution in Marion, Illinois, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1). In the Petition, he argues that under
the recent decision of the Supreme Court in Mathis v.
United States, 136 S.Ct. 2243 (2016), his enhanced
career-offender sentence is unconstitutional. (Doc. 1).
commenting on the merits of Petitioner's claims, the
Court concludes that the Petition survives preliminary review
under Rule 4 and Rule 1(b) of the Rules Governing Section
2254 Cases in the United States District Courts.
criminal case in the Eastern District of Missouri, United
States v. Kennedy, No. 1:09-cr-170-CEJ, Petitioner pled
guilty to one offense: Conspiracy to Manufacture a Substance
Containing a Detectable Amount of Methamphetamine, in
violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(C). (Doc. 1-1, p. 3). He was sentenced to 151
months imprisonment, 3 years of supervised release, and a
mandatory special assessment fee of $100. (Doc. 1-1, p. 3).
The career-offender enhancement was imposed pursuant to the
United States Sentencing Guidelines (“USSG”) at
§ 4B1.1, based on two prior convictions for attempted
manufacture of methamphetamine and possession of ephedrine
with intent to manufacture methamphetamine. (Doc. 1-1, p. 5).
As a result of the career-offender determination,
Petitioner's total offense level was raised from 23 to
29, and the corresponding sentencing guideline range
increased from 92-115 months to 151-188 months incarceration.
(Doc. 1-1, pp. 5-6).
appealed his conviction, but his appeal was dismissed.
(Doc.1-1. p. 7). Petitioner also filed a § 2255 petition
arguing that he received ineffective assistance of counsel.
Id. Petitioner's § 2255 petition was
denied. Id. Petitioner now argues that pursuant to
Mathis, he should be resentenced without enhancement
because one or both of his underlying convictions do not
constitute controlled substance offenses under the reasoning
in Mathis, as the elements of Petitioner's
underlying offenses criminalize a greater swath of conduct
than the elements of the relevant guidelines offense. (Doc.
1-1, pp. 18-21).
of the Rules Governing Section 2254 cases in United States
District Courts 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
a person may challenge his federal conviction only by means
of a motion brought before the sentencing court pursuant to
28 U.S.C. § 2255, and this remedy normally supersedes
the writ of habeas corpus. A § 2241 petition by a
federal prisoner is generally limited to challenges to the
execution of the sentence. Valona v. United States,
138 F.3d 693, 694 (7th Cir. 1998); Atehortua v.
Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Federal
prisoners may utilize § 2241, however, to challenge the
legality of a conviction or sentence in cases under the
“savings clause” of § 2255(e). The savings
clause allows a petitioner to bring a claim under §
2241, where he can show that a remedy under § 2255 is
inadequate or ineffective to test the legality of his
detention. Id. See also United States v.
Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
Court of Appeals for the Seventh Circuit has held that §
2255 is only inadequate or ineffective when three
requirements are satisfied: 1) the petitioner relies on a new
case of statutory interpretation rather than a constitutional
decision; 2) the case was decided after his first § 2255
motion but is retroactive; and 3) the alleged error results
in a miscarriage of justice. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012). “‘Inadequate
or ineffective' means that ‘a legal theory that
could not have been presented under § 2255 establishes
the petitioner's actual innocence.'” Hill
v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (citing
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir.
2002)); In re Davenport, 147 F.3d 605, 608 (7th Cir.
instant Petition meets the first requirement as
Mathis is clearly a case of statutory
interpretation. See Dawkins v. United States, 829
F.3d 549, 551 (7th Cir. 2016) (Mathis “is a
case of statutory interpretation”); 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
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. Notably,
“[t]he Supreme Court's decision in Mathis
dealt with the Armed Career Criminal Act (ACCA), not the
federal sentencing Guidelines.” United States v.
Hinkle, 832 F.3d 569, 574 (5th Cir. 2016). However,
Mathis is likely also applicable to the career
offender guidelines, in that the “decision in
Mathis clarified when and how the modified
categorical approach is applied in the context of federal
sentencing, ” and did not necessarily limit itself to
cases involving the ACCA. Id.
argues that Mathis applies to his case and enables
this Court to review the Eastern District of Missouri's
determination that his prior drug-related offenses could act
as predicates for the career offender enhancement, claiming
that, like in Hinkle, one or both of his
drug-related convictions cannot be considered predicate
offenses under the career-offender guidelines provision.
(Doc. 1-1, pp. 13-19). He first argues that the statute
underlying his attempt to commit the offense of manufacture
of methamphetamine conviction is broader than the
“controlled substance offense” definition under
§ 4B1.2 of the Guidelines, particularly because the
statute does not require the possession of any illegal
substances. (Doc. 1-1, pp. 18-19). He further claims that the