United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon United States District Judge.
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
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).
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.
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
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).
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.
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.
asks this Court to vacate his sentence and remand the case
for a new sentencing. (Doc. 1, p. 8).
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.
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. ...