United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY McDADE United States Senior District Judge
matter is before the Court on Petitioner Lawrence
Turner's Motion for Leave to Appeal in forma pauperis.
(Doc. 16). For the reasons that follow, Petitioner's
motion is denied.
March 10, 2005, Petitioner pled guilty to conspiracy to
distribute cocaine and cocaine base. See Plea
Agreement, United States v. Turner, No.
2:05-cr-00011-RTR-1 (E.D. Wis. Mar. 10, 2005). The Government
sought a sentence enhancement for a prior conviction for a
felony drug offense pursuant to 21 U.S.C. §§
841(b)(1)(A) and 851(a). See Information to
Establish Prior Conviction, United States v. Turner,
No. 2:05-cr-00011-RTR-1. The previous conviction was a 1993
conviction for possession of cocaine base with intent to
deliver, in violation of Wisconsin Statute §
161.41(1m)(cm). See Information to Establish
Prior Conviction, United States v. Turner, No.
2:05-cr-00011-RTR-1; (Doc. 1 at 12). The plea agreement
acknowledged that Petitioner was subject to a mandatory
minimum punishment of twenty (20) years of incarceration and
a maximum punishment of life imprisonment with the sentence
enhancement under 21 U.S.C. § 851. Id. On
November 9, 2006, Petitioner was sentenced to 270 months of
incarceration. See Judgment, United States v.
Turner, No. 2:05-cr-00011-RTR-1.
February 17, 2017, Petitioner filed his Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. Petitioner
argued that his predicate conviction no longer served as
“controlled substance offense” under Hinkle
v. United States, 832 F.3d 569 (5th Cir. 2016). (Doc. 1
at 1). On March 3, 2017, the Court denied Petitioner's
§ 2241 Petition because he could not meet the
requirements to invoke the Savings Clause under 28 U.S.C.
§ 2255 in order to be able to file a § 2241
Petition. (Doc. 2 at 5). Furthermore, the Court found that
even if Petitioner had met the requirements, Petitioner's
argument would fail on its merits because Petitioner's
sentence enhancement under 21 U.S.C. § 841 was
predicated on a prior “felony drug offense, ” not
a “controlled substance offense.” (Doc. 2 at 5).
March 13, 2017, Petitioner filed a “Motion for
Reconsideration, ” which is actually a Motion to Alter
or Amend a Judgment pursuant to Federal Rule of Civil
Procedure 59(e). (Doc. 5). Petitioner argued that he was
making a claim under Mathis v. United States, 136
S.Ct. 2243 (2016); therefore, he argued that he meets the
requirements to invoke the Savings Clause. (Doc. 5 at 1).
Petitioner also argued that the § 841 sentence
enhancement does not define “felony drug
offense;” therefore the Court should adopt the
definition of “controlled substance offense” and
find that Petitioner's predicate act does not meet that
definition under Mathis and Hinkle. (Doc. 5
March 17, 2017, the Court denied Petitioner's Motion to
Alter or Amend Judgment under Rule 59(e). (Doc. 9). The Court
found that Petitioner still failed to meet the requirements
to invoke the Savings Clause under 28 U.S.C. § 2255 in
order to be able to file a § 2241 Petition. (Doc. 9 at
2). Furthermore, the Court found that Petitioner's
predicate offense met the definition of a “felony drug
offense” and that Mathis and Hinkle
were inapplicable. (Doc. 9 at 4).
March 13, 2017, Petitioner filed a Notice of Appeal as to the
Court's denial of his § 2241 Petition. (Doc. 5). On
March 27, 2017, Petitioner filed a Notice of Appeal as to the
Court's denial of Petitioner's Rule 59(e) Motion to
Alter or Amend Judgment. (Doc. 10). On April 6, 2017,
Petitioner filed a Motion for Leave to Appeal in forma
pauperis. (Doc. 16). On appeal, Petitioner asserts, without
providing any legal support, that the definition for
“felony drug offense” is overly broad and
“must certainly violate a defendant's
constitutional rights.” (Doc. 17 at 1).
28 U.S.C. § 1915(a), an indigent prison litigant may
pursue an appeal by filing an affidavit that includes a
statement of all assets such prisoner possesses, and affirms
that the prisoner is unable to pay court fees or provide
security therefor. The affidavit must also state the nature
of the appeal and the affiant's belief that he is
entitled to redress. The prisoner must also submit a
certified copy of his trust fund account statement (or
institutional equivalent) for the six month period
immediately preceding the filing of the complaint or notice
of appeal, obtained from the appropriate official of each
prison at which the prisoner is or was confined.
order to grant a motion for leave to appeal in forma
pauperis, the court must find both that the petitioner does
not have the means to pay the filing fee for his appeal and
that his appeal is taken in good faith. Section 1915(a)(3)
explicitly provides an “appeal may not be taken in
forma pauperis if the trial court certifies in writing that
it is not taken in good faith.” An appeal is taken in
good faith if “a reasonable person could suppose that
the appeal has some merit.” Walker v.
O'Brien, 216 F.3d 626, 632 (7th Cir. 2000).
the Court finds that Petitioner would be unable to afford the
filing fee, the Court denies Petitioner's Motion for
Leave to Appeal in forma pauperis because it is not taken in
good faith. Petitioner's argument on appeal is that the
sentencing enhancement under 21 U.S.C. § 841 is overly
broad. However, Petitioner provides no legal support for that
assertion. Without some legal support, the Court finds that
no reasonable person could suppose that Petitioner's
argument has merit.
if Petitioner relies on his assertions that his predicate
offense is not a “felony drug offense, ” the
Court finds Petitioner is similarly without a meritorious
appeal. As the Court explained in its March 3rd and March
17th Orders, ...