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Stewart v. Werlich

United States District Court, S.D. Illinois

April 4, 2017

ARLEND E. STEWART, # 23551-045 Petitioner,
v.
T.G. WERLICH, Respondant.

          MEMORANDUM AND ORDER

          Herndon United States District Judge

         INTRODUCTION

         Petitioner 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).

         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.

         BACKGROUND

         On 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).[1] (Criminal Case, Doc. 19 and Doc. 1, p. 3). There was no written plea agreement. Id.

         The 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).

         At 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 PSR. Id.

         Stewart 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. Id.

         On 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).

         On June 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 petition followed.

         THE PETITION

         Distilled to its essence, Stewart's petition asserts three grounds for upsetting his sentence:

         (1) As a result of the Supreme Court's decisions in Johnson and Welch, Stewart's ...


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