United States District Court, S.D. Illinois
STEVEN A. ZWEIGART II, Petitioner,
B. TRUE, Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge
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
conspiracy to manufacture a mixture and substance containing
methamphetamine. United States v. Steven A. Zweigart,
II No. 12-cr-40103-JPG-1 (S.D. Ill. 2012)
(“criminal case”). The petition was filed on
April 28, 2017. (Doc. 1).
was sentenced to 163 months' imprisonment as a Career
Offender on August 15, 2013. (Doc. 1, p. 9). Previously,
petitioner filed a motion pursuant to 28 U.S.C. § 2255,
arguing that his attorney was ineffective in challenging the
sufficiency of the factual basis for his career offender
status. (Doc. 1, p. 10); Zweigart II v. True, No.
14-cv-944-JPG. (S.D. Ill. 2014) That petition was ultimately
denied on March 31, 2015. Id. Petitioner's
appeal to the Seventh Circuit was denied in light of
Beckles v. United States, 137 S.Ct. 886 (2017).
(Doc. 1, pp. 10-11).
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
asks that he be resentenced without the Career Offender
enhancement. (Doc. 1, p. 21). Petitioner asserts that his
predicate offenses were 1) DUI; 2) Poss. Of Meth.
Manufacturing Chemicals; 3) Telephone Harassment; 4) Domestic
Battery; 5) Felony Domestic Battery. (Doc. 1, p. 11). In
particular, petitioner challenges the use of the possession
of meth manufacturing materials as a predicate offense
involving a controlled substance and the use of the felony
domestic battery count as a violent felony. (Doc. 1, pp.
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).
attempt to trigger application of the savings clause,
petitioner relies on 4 cases: Mathis v. United
States, 136 S.Ct. 2243 (U.S. 2016); Begay v. United
States, 553 U.S. 137 (2008); United States v.
Hinkle, 832 F.3d 569 (5th Cir. 2016); United States
v. Aviles-Solarzano, 623 F.3d 470 (7th Cir. 2010).
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.
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
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).
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 by lining up the
crime's elements alongside those of the generic offense
to see if the elements match. Id. at 2248. In the
case of a divisible statute, where the statute lists elements
in the alternative, a court employs a “modified
categorical approach” by which the court may examine a
limited class of documents to determine what crime, with what
elements, the defendant was convicted of. Id. at
2249. Mathis stands for the proposition that when a
statute enumerates various facts that meet an element of the
crime, a court must still apply the categorical approach,
without reference to the facts of the specific case.
Id. at 2251. That is, if the statute is indivisible,
but specifies that certain alternative facts may satisfy an
element, a court cannot look to the facts of the case to
determine whether the conduct involved satisfied the generic
version of the crime if the state statute involved is broader
than the generic version. Id.
Sentencing Guidelines, like the ACCA, also refer to specific
crimes as grounds for sentencing enhancements. Some of the
language of the Sentencing Guidelines track the ACCA quite
closely. However, Mathis specifically addressed
burglary with reference to the language in the “crime
of violence” section. In contrast, petitioner's
sentence was enhanced in part because he had predicate
“controlled substance offenses.” A
“controlled substance offense” is defined in the
[A]n offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit