United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon, Judge
Kenneth Murray, who is currently incarcerated in the Federal
Correctional Institution in Greenville, Illinois, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1). In the petition, he argues that under
the recent decision of the Supreme Court in Mathis v.
United States, 136 S.Ct. 2243 (2016), his sentence
enhanced by the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is
unconstitutional. (Doc. 1).
commenting on the merits of petitioner's claims, the
Court concludes that the Petition survives preliminary review
under Rule 4 and Rule 1(b) of the Rules Governing Section
2254 Cases in the United States District Courts.
Petition In his criminal case in the Western District of
Missouri, United States v. Murray, No.
4:06-cr-0272-NKL (W.D.Mo. June 29, 2007), petitioner pled
guilty to Count 1 of the indictment, felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g).
Murray, No. 4:06-cr-0272-NKL at (Doc. 24). He was
sentenced to 180 months imprisonment. Id. An
enhancement was imposed pursuant to the ACCA, 18 U.S.C.
§ 924(e), based on three prior convictions for
“Sale of a Controlled Substance” in violation of
Mo. Rev. Stat. § 195.010. (Doc. 1, p. 2).
appealed his conviction in 2007 and filed a § 2255
petition in 2016. Murray, No. 4:06-cr-0272-NKL at
(Docs. 25, 34). Both of these efforts failed. Id. at
(Docs. 32, 35). Petitioner now argues that pursuant to
Mathis, he should be resentenced without enhancement
because his underlying drug convictions do not qualify as
predicate serious drug offenses under the ACCA, pursuant to
the reasoning in Mathis, as the elements of
petitioner's underlying offenses criminalize a greater
swath of conduct than the generic ACCA serious drug offense,
defined at 18 U.S.C. § 924(e)(2)(A)(ii). (Doc. 1, pp.
of the Rules Governing Section 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
a person may challenge his federal conviction only by means
of a motion brought before the sentencing court pursuant to
28 U.S.C. § 2255, and this remedy normally supersedes
the writ of habeas corpus. A § 2241 petition by a
federal prisoner is generally limited to challenges to the
execution of the sentence. Valona v. United States,
138 F.3d 693, 694 (7th Cir. 1998); Atehortua v.
Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Federal
prisoners may utilize § 2241, however, to challenge the
legality of a conviction or sentence in cases under the
“savings clause” of § 2255(e). The savings
clause allows a petitioner to bring a claim under §
2241, where he can show that a remedy under § 2255 is
inadequate or ineffective to test the legality of his
detention. Id. See also United States v.
Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
Court of Appeals for the Seventh Circuit has held that §
2255 is only inadequate or ineffective when three
requirements are satisfied: 1) the petitioner relies on a new
case of statutory interpretation rather than a constitutional
decision; 2) the case was decided after his first § 2255
motion but is retroactive; and 3) the alleged error results
in a miscarriage of justice. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012). “‘Inadequate
or ineffective' means that ‘a legal theory that
could not have been presented under § 2255 establishes
the petitioner's actual innocence.'” Hill
v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (citing
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir.
2002)); In re Davenport, 147 F.3d 605, 608 (7th Cir.
instant petition meets the first requirement as
Mathis is clearly a case of statutory
interpretation. See Dawkins v. United States, 829
F.3d 549, 551 (7th Cir. 2016) (Mathis “is a
case of statutory interpretation”); 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. As noted above,
the Seventh Circuit has indicated that Mathis is a
substantive rule. Jenkins v. United States, No.
16-3441 (7th Cir. Sept. 20, 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).
Court, however, cannot ascertain whether the third
requirement is met. In Mathis, the Supreme Court
held that Iowa's burglary statute did not qualify as a
predicate violent felony under the Armed Career Criminal Act
(“ACCA”) because it was broader than the
“generic” offense of burglary in §
924(e)(2)(B)(ii). Thus, Mathis focused on what
constitutes a prior violent felony under the ACCA, not what
constitutes a prior serious drug offense as is the issue in
the instant case.
argues that Mathis applies to his case and enables
this Court to review the Western District of Missouri's
determination that his prior drug-related offenses could act
as predicates for the ACCA enhancement. He argues that the
statute underlying his “Sale of a Controlled
Substance” offences is broader than the “serious
drug offense” definition at 18 U.S.C. §
924(e)(2)(A)(ii). (Doc. 1, pp. 12-13).
Court is without sufficient information to determine whether
the statute underlying the convictions resulting in
petitioner's ACCA enhancement is indeed broader than the
relevant generic offense in the ACCA. If not, there is no
grave error constituting a miscarriage of justice and the
petition must be dismissed. However, at this stage in the
litigation, the Court finds it prudent to allow
petitioner's claim to proceed. That is, during its
initial review, the Court declines to find that
petitioner's M ...