United States District Court, S.D. Illinois
JOSHUA L. DAVIS, No. 39224-424, Petitioner,
MEMORANDUM AND ORDER
R. HERNDON JUDGE.
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
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).
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).
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).
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.
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).
the Seventh Circuit's rejection of the above
applications, Petitioner filed the instant action on April
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
on these arguments, Petitioner requests the Court to vacate,
set aside, or correct his sentence. (Doc. 1, p. 11).
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 ...