Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lumbert v. True

United States District Court, S.D. Illinois

March 28, 2017

MICHAEL LUMBERT, Petitioner,
v.
B. TRUE, Respondent.

          MEMORANDUM AND ORDER

          David R. Harndon United States District Judge

         Petitioner, 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. (Doc. 1).

         Petitioner 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.

         Petitioner 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.

         Rule 4 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 corpus cases.

         The Petition

         Petitioner 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).

         Discussion

         Ordinarily, 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 appellate court.

         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).

         In his 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.

         Petitioner 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 constitutional one.”).

         The 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).

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.