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Bass v. True

United States District Court, S.D. Illinois

May 9, 2017

RUSSELL D. BASS, No. 13425-424, Petitioner,
v.
B. TRUE, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON JUDGE.

         Petitioner, currently incarcerated in the USP-Marion, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of his confinement.

         The Court must evaluate the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 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, such as this action under 28 U.S.C. § 2241.

         Background

         Petitioner pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). United States v. Bass, Case No. 01-cr-109 (N.D. Ill.). The trial court found that he had 3 prior convictions for crimes of violence, and accordingly sentenced him as an armed career criminal to an enhanced term of 300 months. See 18 U.S.C. § 924(e)(1). On April 28, 2003, the judgment and sentence were affirmed on direct appeal. United States v. Bass, 325 F.3d 847 (7th Cir. 2003), cert. denied, 540 U.S. 998 (2003).

         Over the intervening years, Petitioner made a number of attempts to challenge his sentence, without success. His original motion to vacate sentence under 28 U.S.C. § 2255 was dismissed as untimely. United States v. Bass (N.D. Ill. Case No. 05-cv-1776, filed June 2, 2005, dismissed May 23, 2006 (Doc. 20)).

         In December 2009, he filed a habeas action in this Court under 28 U.S.C. § 2241, Bass v. Hollingsworth, Case No. 09-cv-1059-JPG. He challenged his career-criminal-enhanced sentence on the basis that his 1985 Illinois conviction for burglary should not have been counted as one of the 3 predicate convictions because it was for burglary of a salvage yard, not a residence, and posed no risk of physical injury to another person. See 720 Ill. Comp. Stat. 5/19-1 (formerly Ill. Rev. Stat. Ch. 38, ¶ 19-1(a)). That petition was dismissed on September 16, 2011, because the Court found that the challenge should have been raised under § 2255. (Docs. 12, 15, in Case No. 09-cv-1059-JPG).

         Petitioner next sought permission from the Seventh Circuit to bring a successive petition for writ of habeas corpus under § 2255. Bass v. United States, No. 11-2793 (7th Cir.). That action was dismissed on August 29, 2011.

         In 2012, he filed a second habeas corpus petition under § 2241 in this Court, again challenging the enhanced sentence based on the 1985 Illinois burglary conviction. Bass v. Walton, Case No. 12-cv-1119-DRH. This Court dismissed the petition, again finding that he had the opportunity to raise his argument in a§ 2255 motion. (Doc. 6 in Case No. 12-cv-1119).

         In 2013, Petitioner brought another action in the Northern District under § 2255, raising a challenge to his sentence under the new Supreme Court decision in Descamps v. United States, 133 S.Ct. 2276 (2013). (Doc. 78 in criminal case, No. 01-cr-109). That challenge was rejected in a July 9, 2015, order, because the Supreme Court had not made Descamps retroactive on collateral review. (Doc. 108 in criminal case).

         After the Supreme Court decided Johnson v. United States, -- U.S. --, 135 S.Ct. 2551 (2015), Petitioner filed an application with the Seventh Circuit to bring a successive § 2255 petition. Bass v. United States, No. 16-2186. That argument failed, and Petitioner's application was dismissed on June 7, 2016. (Doc. 6 in No. 16-2186).

         Petitioner made another attempt with the Seventh Circuit to bring a successive § 2255 action, this time raising both Johnson and Mathis v. United States, -- U.S. --, 136 S.Ct. 2243 (2016). Bass v. United States, No. 16-2688. Mathis held that an Iowa burglary conviction did not qualify as a predicate violent felony offense under the ACCA because the Iowa statute, which criminalized entry into a vehicle, was broader than the “generic” offense of burglary listed in § 924(e)(2)(B)(ii) - which must involve the unlawful entry into a building or other structure. Mathis, 136 S.Ct. at 2250-51, 2257. The Seventh Circuit again denied permission for a successive § 2255 motion, but this time stated:

To the extent that Bass argues that Mathis provides an independent basis for authorization distinct from his previous claim under Johnson, we note that Mathis is a case of statutory interpretation; it does not announce “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2); see Dawkins, 2016 WL 3854238, at *2. An independent claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241.

(Doc. 6 in 7th Cir. No. 16-2688). Following this direction, Petitioner filed the instant ...


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