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Warren v. Werlich

United States District Court, S.D. Illinois

March 27, 2017

T.G. WERLICH, Respondent.


          David R. Herndon United States District Judge.

         Petitioner, currently incarcerated in the FCI-Greenville, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of his confinement. Relying on the recent case of Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016), he argues that his prior drug conviction should not have been used to impose an enhanced sentence under the career offender sentencing guidelines.

         This case is now before the Court for a preliminary review of the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 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, such as this action under 28 U.S.C. § 2241. Without commenting on the merits of petitioner's claims, the Court concludes that the petition survives preliminary review under Rule 4 and Rule 1(b).


         In October 2011, petitioner pled guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (Count 2 of the indictment) in the District of Kansas, Case No. 11-cr-20040. On April 30, 2012, he was sentenced to 300 months in prison, the statutory maximum. (Doc. 1, p. 1); United States v. Warren, 737 F.3d 1278 (10th Cir. 2013). Two other charges were dismissed according to the plea agreement.

         The trial court found that petitioner qualified as a career offender under the United States Sentencing Guidelines (“USSG”), § 4B1.1(a), because he had 2 prior felony convictions for either a crime of violence or a controlled substance offense. United States v. Warren, 737 F.3d 1278 (10th Cir. 2013). Petitioner had one of each. The drug offense on which the trial court based the career-offender enhancement was petitioner's Missouri state court conviction for sale of a PCP-laced cigarette. Petitioner also had a previous conviction for a different armed bank robbery. He had served approximately 12 years in federal prison for that bank robbery, and then committed the 2011 robbery about 12 months after his release. In sentencing him for the instant offense, the trial court found that under the USSG, petitioner's total offense level was 31, with a criminal history category of VI. This yielded an advisory sentencing range of 188 to 235 months. The sentencing court found that an upward variance from the guideline range was warranted, and imposed the 300 month sentence petitioner now challenges.

         On December 16, 2013, the Tenth Circuit affirmed petitioner's sentence on appeal. United States v. Warren, 737 F.3d 1278 (10th Cir. 2013). On October 21, 2014, petitioner brought a timely motion under 28 U.S.C. § 2255. (Doc. 48 in criminal case, No. 11-cr-20040 (D. Kan.). That motion was denied by the trial court on March 4, 2016. (Doc. 49 in criminal case). The Tenth Circuit denied a certificate of appealability. Warren v. United States, 660 F.App'x 611 (10th Cir. 2016).

         The Petition

         Petitioner focuses his argument on his Missouri drug conviction, for violation of MRS 195.202, “Sale of a Controlled Substance.” (Doc. 1, pp. 2, 6-8). He claims that this crime is “not a career offender generic offense” under the reasoning of Mathis v. United States, 136 S.Ct. 2243 (2016). Petitioner explains that the Missouri statute defines “sale” as including a “barter, exchange, or gift, ” and further defines “deliver/delivery” as a “transfer from one person to another . . . and includes a sale.” (Doc. 1, p. 7). He characterizes the Missouri statue as a “divisible” statute including several alternative elements of the offense, analogous to the burglary statute which the Mathis Court found to be too broad to fit within the definition of a “generic” burglary.

         He notes that neither of the terms used in the Missouri statute (“deliver” or “sale”) is found in the USSG at § 4B1.1 or § 4B1.2. He points out that §4B1.2 defines “controlled substance offense” as one that prohibits the “distribution” of a drug, or the “possession” with intent to “distribute or dispense” the controlled substance. USSG § 4B1.2. Based on his observation that the relevant USSG sections do not include the same words as the Missouri statute, he reasons that the career offender guidelines have been improperly broadened by including his drug sale offense as a predicate for enhancing his sentencing range, and then imposing a greater sentence.

         Petitioner asks this Court to vacate his sentence and remand the case for a new sentencing. (Doc. 1, p. 8).


         As a general matter, “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.” Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir. 2000). See also Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998). Here, petitioner is attacking his conviction and sentence, which points to § 2255 as the proper avenue for relief.

         Under very limited circumstances, a prisoner may employ § 2241 to challenge his federal conviction or sentence. 28 U.S.C. § 2255(e) contains a “savings clause” which authorizes a federal prisoner to file a § 2241 petition where the remedy under § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). See Hill, 695 F.3d at 648 (“‘Inadequate or ineffective' means that ‘a legal theory that could not have been presented under § 2255 establishes the petitioner's actual innocence.'”) (citing Taylor v. Gilkey,314 F.3d 832, 835 (7th Cir. 2002). See also United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The fact that petitioner may be barred from bringing a second/successive § 2255 petition is not, in itself, sufficient to render it an inadequate remedy. In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998) (§ 2255 limitation on filing successive motions does not render it an inadequate remedy for a prisoner who had filed a prior § 2255 motion). Instead, a petitioner under § 2241 must demonstrate the inability of a § 2255 motion to cure the defect in the conviction. ...

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