United States District Court, S.D. Illinois
ARLEND E. STEWART, # 23551-045 Petitioner,
T.G. WERLICH, Respondant.
MEMORANDUM AND ORDER
Herndon United States District Judge
Arlend E. Stewart, currently incarcerated in the Greenville
Federal Correctional Institution, brings this habeas corpus
action pursuant to 28 U.S.C. § 2241 to challenge his
enhanced sentence following his guilty plea to unlawfully
possessing a firearm in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2).
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
January 25, 2012, after entering a plea of guilty, Stewart
was convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and
924(a)(2). (Criminal Case, Doc. 19 and Doc. 1, p. 3).
There was no written plea agreement. Id.
base offense level for a section 922(g)(1) offense is set by
Sentencing Guidelines § 2K2.1(a). That section provides
for a base offense level of 20 if the defendant had a single
prior “felony conviction of either a crime of violence
or a controlled substance offense.” U.S.S.G. §
2k2.1(a)(4)(A). According to government pleadings filed in
response to Stewart's request to file a successive §
2255 petition in the Eighth Circuit, the presentence
investigation report (“PSR”) calculated a base
offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A) by
virtue of Stewart's prior Missouri conviction for sale of
a controlled substance. See Stewart v. United
States, Case No. 16-2841, Doc. 4422798 (8th Cir. July 6,
2016). The PSR “also assessed a two-level enhancement
under § 2K1.1(b)(4)(A) for possessing a firearm that was
stolen, and an additional four-level enhancement under §
2K1.1(b)(6)(B) for possession of a firearm in connection with
another felony offense - the possession of a distribution
amount of cocaine - for a total offense level of 26.”
Id. at p. 4; U.S. v. Stewart, 500 Fed.Appx.
545, 546 (8th Cir. 2013)(unpublished).
sentencing, the court adopted the recommendations in the PSR,
including application of the recommended four-level
enhancement under § 2K1.1(b)(6)(B). U.S. v.
Stewart, 500 Fed.Appx. 545, 546 (8th Cir.
2013)(unpublished). With respect to the 2K1.1(b)(6)(B)
enhancement, the court overruled Stewart's objections and
credited the arresting officers' testimony that a white
substance recovered during Stewart's arrest was 34.9
grams of crack cocaine. Id. The court sentenced
Stewart to 90 months in prison, a sentence below the midpoint
of the 86-to-105-month Guidelines range calculated in the
filed a direct appeal of his conviction and sentence.
Id. In his appeal, Stewart argued the court erred in
finding by a preponderance of the evidence that the substance
Stewart possessed at the time of his arrest was crack
cocaine. Id. The Eighth Circuit rejected this
argument and confirmed his conviction and sentence.
September 9, 2013, Stewart filed his initial § 2255
motion in the Western District of Missouri seeking to vacate
his conviction and sentence. Stewart v. United
States, No. 13-cv-06099-GAF. The district court denied
that motion on March 18, 2014. Id. Doc. 10.) On May
12, 2013, Stewart filed an appeal of the Western
District's decision. Id. Doc. 13. A final
judgment denying his appeal by the court was entered on
November 4, 2014. Id. Doc. 16).
24, 2016, Stewart filed a request for permission to file a
successive § 2255 petition. Stewart v. United
States, Case No. 16-2841, Doc. 4417558 (8th Cir. June
24, 2016). In support of his request to file a successive
petition, Stewart cited to Johnson v. United States,
576 U.S. --, 135 S.Ct. 2551 (2015), and Welch v. United
States, 578 U.S. -, 136 S.Ct. 1257 (2016). In responding
to Stewart's request, the government argued that
Johnson was inapplicable because all of
Stewart's predicate offenses which increased his base
offense level were serious drug offenses. Stewart v.
United States, Case No. 16-2841, Doc. 4422798 (8th Cir.
July 6, 2016). The Eighth Circuit denied Stewart's
request without giving the basis for its decision.
Stewart v. United States, Case No. 16-2841, Doc.
4444407 (8th Cir. Sept. 1, 2016). The instant § 2241
to its essence, Stewart's petition asserts three grounds
for upsetting his sentence:
a result of the Supreme Court's decisions in
Johnson and Welch, Stewart's ...