United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Harndon United States District Judge
currently incarcerated in the United States Penitentiary
Marion, brings this habeas corpus action pursuant to 28
U.S.C. § 2241 to challenge his enhanced sentence as a
career offender following his guilty plea to a count of
distribution of a controlled substance (crack cocaine).
United States v. Michael P. Lumbert, No.
11-cr-00066-bcc-1 (W.D. Wis. 2011) (“criminal
case”). The petition was filed on February 27, 2017.
was sentenced to 188 months' imprisonment as a career
offender on December 6, 2011. (Doc. 22, criminal case).
Previously, petitioner filed a motion pursuant to 28 U.S.C.
§ 2255, arguing that his attorney was ineffective. (Doc.
1, p. 4). That petition was ultimately denied. Id.
now brings this habeas corpus action pursuant to 28 U.S.C.
§ 2241 and argues the career offender enhancement he
received pursuant to United States Sentencing Guideline
§ 4B1.1 was made pursuant to state-law drug convictions
that did not meet the requirements of the Sentencing
Guidelines for the career enhancement. (Doc. 1, p. 2).
Petitioner requests resentencing. Id.
of the Rules Governing § 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
asks that he be resentenced without the career offender
enhancement. (Doc. 1, p. 2). Petitioner asserts that his
predicate offenses were delivery of a controlled substance in
Marathon County, Wisconsin, in Case Nos. 02-CF-421, 03-CF-30,
04-CF-985, and 06-CF-745. (Doc. 1, p. 4).
a prisoner may challenge his federal conviction or sentence
only by means of a § 2255 motion brought before the
sentencing court, and this remedy typically supersedes the
writ of habeas corpus. Brown v. Caraway, 719 F.3d
583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012)). A writ of habeas corpus under
§ 2255 requires the petitioner to file his challenge in
the district that imposed the criminal sentence on him. See
28 U.S.C. § 2255(a). In this case, petitioner is clearly
attacking his sentence. However, he has alleged that he has
already filed a motion pursuant to § 2255, and that
remedy is no longer available to him without leave of the
“savings clause” under § 2255(e) allows a
federal prisoner to file a petition under § 2241, if the
remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See
28 U.S.C. § 2255(e). In considering what it means to be
“inadequate or ineffective, ” the Seventh Circuit
has held that a federal prisoner should be permitted to seek
relief 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.” In re
Davenport, 147 F.3d 605, 611 (7th Cir. 1998). A federal
prisoner must meet 3 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).
attempt to trigger application of the savings clause,
petitioner relies on three cases: Mathis v. United
States, 136 S.Ct. 2243 (U.S. 2016); Holt v. United
States, 843 F.3d 720 (7th Cir. 2016); and United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016).
Mathis addresses the “enumerated clause”
of the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e); specifically it addresses what test a
court should apply when determining whether a state
conviction falls within the enumerated crimes clause.
has met the first two requirements to bring a § 2241
case. Mathis is a case of statutory interpretation.
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
petition also meets the second requirement. The Seventh
Circuit has indicated that Mathis is a substantive
rule. Dawkins, 829 F.3d at 551 (7th Cir. 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).
third element is problematic. In Mathis, the Supreme
Court discussed the correct approach to applying the
enumerated clause in the ACCA. 136 S.Ct. 2243 (U.S. 2016). A
prior crime qualifies as a predicate offense only if its
elements are the same as, or narrower than, those of the
generic offenses listed in the statute. Id. at 2247.
When a statute is indivisible, a court can determine whether
the crime counts as an ACCA predicate ...