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Davis v. USA

United States District Court, S.D. Illinois

June 14, 2017

JOSHUA L. DAVIS, No. 39224-424, Petitioner,
v.
USA, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON JUDGE.

         Petitioner, currently incarcerated in the FCI-Greenville, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of his confinement. Relying on the recent case of Mathis v. United States, __U.S.__, 136 S.Ct. 2243 (2016) and other recent decisions, he argues that his two prior Illinois state convictions (one for delivery of a controlled substance, and the other for aggravated discharge of a firearm) should not have been used to impose an enhanced sentence under the career offender sentencing guidelines.

         This case is now before the Court for a preliminary review of 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. Without commenting on the merits of Petitioner's claims, the Court concludes that the Petition survives preliminary review under Rule 4 and Rule 1(b).

         Background

         In September 2009, Petitioner pled guilty to 2 counts of a 6-count indictment - Count 1, for distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1), and Count 6, for possessing firearms and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). (Doc. 1, p. 4-5); United States v. Davis, Case No. 08-cr-50026 (N.D. Ill., Doc. 57). Because Petitioner had previously been convicted in Whiteside County, Illinois, of aggravated discharge of a firearm (Case No. 94-CF-75) (which qualifies as a crime of violence), and delivery of a controlled substance (Case No. 98-CF-158), the court sentenced him as a career offender pursuant to the United States Sentencing Guidelines (U.S.S.G.) at § 4B1.1. The advisory sentencing range under the U.S.S.G. was 262-327 months, with a statutory minimum sentence of 10 years. (Doc. 57 in criminal case, pp. 9-11). On December 14, 2009, Petitioner was sentenced to a below-guidelines term of 240 months on Count 1, to run concurrently to a 120-month sentence on Count 6. (Doc. 69 in criminal case).

         On January 18, 2011, the Seventh Circuit dismissed Petitioner's direct appeal after his counsel filed an Anders brief. (Doc. 94 in criminal case). In 2012, Petitioner filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582, which was unsuccessful. (Docs. 108-109 in criminal case).

         Subsequently, Petitioner made several attempts to challenge his sentence pursuant to 28 U.S.C. § 2255. His initial § 2255 motion was denied as untimely. United States v. Davis, No. 13-cv-50360 (N.D. Ill., March 18, 2014; Doc. 6). In the order denying relief, the court discussed Petitioner's challenge to his career offender classification, finding that even if the § 2255 challenge had been timely, it would have failed.

         In 2016, Petitioner filed three applications with the Seventh Circuit, seeking permission to file a second or successive § 2255 motion. Each was unsuccessful. In Case Nos. 16-1726 and 16-3204, Petitioner attempted to challenge his career-offender sentence under Johnson v. United States, 135 S.Ct. 2551 (2015). The Seventh Circuit responded that Johnson was inapplicable because Petitioner was not sentenced under the residual clause of the Armed Career Criminal Act. Davis v. United States, No. 16-1726 (7th Cir. April 28, 2016, Doc. 6). Further, Petitioner's conviction for aggravated discharge of a firearm was properly used as a career-offender-qualifying conviction, because it included as an element the use, threatened use, or attempted use of force. Id. (citing United States v. Womack, 732 F.3d 745, 748-49 (7th Cir. 2013). Petitioner also sought to challenge his sentence under Mathis v. United States, 136 S.Ct. 2243 (2016), in Case Nos. 16- 3204 and 16-3745. In denying permission for a second/successive § 2255 in those cases, the Seventh Circuit noted that Mathis did not meet the criteria to form the basis for a sentence challenge in a § 2255 proceeding. Davis v. United States, No. 16-3204 (7th Cir. Sept. 12, 2016, Doc. 2).

         Following the Seventh Circuit's rejection of the above applications, Petitioner filed the instant action on April 12, 2017.

         The Petition

         Petitioner argues that the Illinois statutes under which he was convicted in his prior drug and firearm offenses are “divisible, ” and do not qualify as predicate offenses for a career-criminal enhancement when analyzed using the “modified categorical approach” as explained in United States v. Descamps, 133 S.Ct. 2276, 2281 (2013). (Doc. 1, pp. 1, 6-7). He invokes Mathis, 136 S.Ct. 2243, and points to United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), as an example. In Hinkle, the appellate court found that a Texas conviction for delivery of heroin did not qualify as a “controlled substance offense” to trigger an enhanced career-offender sentence under the USSG, because the state statute criminalized some conduct that fell outside the U.S.S.G. definition of a predicate controlled substance offense. Petitioner argues that his conviction for possession of a controlled substance with intent to deliver, under 720 ILCS 570/401(c)(2), similarly should not have been used to enhance his sentence. (Doc. 1, pp. 6-9). He claims the statute includes the element of simple possession, which would not trigger the enhanced sentencing scheme, as well as delivery of a controlled substance, which is a qualifying offense.

         Based on these arguments, Petitioner requests the Court to vacate, set aside, or correct his sentence. (Doc. 1, p. 11).

         Discussion

         As a general matter, “28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide federal prisoners with distinct forms of collateral relief. Section 2255 applies to challenges to the validity of convictions and sentences, whereas § 2241 applies to challenges to the fact or duration of confinement.” Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir. 2000). See also Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v. United States, 138 F.3d ...


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