United States District Court, S.D. Illinois
LARRY A. NESBY, No. 05328-025, Petitioner
B. TRUE, Respondent.
MEMORANDUM AND ORDER
R. Herndon, United States District Judge.
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. He asserts that in
light of Mathis v. United States, -- U.S. --, 136
S.Ct. 2243, 2250 (2016), his prior Illinois convictions for
drug offenses should not have been used to impose an enhanced
sentence under the career offender sentencing guidelines.
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).
was tried before a jury and convicted in this Court of
conspiracy to distribute more than 50 grams of crack cocaine,
in violation of 21 U.S.C. § 841(a)(1) and 846. (Doc. 1,
p. 2); United States v. Nesby, Case No.
01-cr-40047-JPG (S.D. Ill.). On October 3, 2002, he was
sentenced to life in prison. Id. The conviction and
sentence were affirmed on appeal, and the Supreme Court
denied his petition for certiorari on October 6, 2003. (Doc.
1, p. 2).
October 4, 2004, Petitioner filed a motion under 28 U.S.C.
§ 2255, in which he challenged the enhancement of his
sentence to life, as well as claimed ineffective assistance
of counsel. Nesby v. United States, Case No.
04-cv-4203 (S.D. Ill.). That motion and another filed on
November 10, 2004 (Case No. 04-cv-4235), was denied. (Doc. 1,
October 28, 2016, Petitioner was notified that he had been
granted executive clemency as to the life sentence. This
executive action reduced his sentence to a term of 360
months. Id.; (Doc. 254 in criminal case).
argues that under Mathis v. United States, 136 S.Ct.
2243 (2016), his criminal history level should be adjusted to
exclude his 3 drug-related state convictions as predicate
offenses for purposes of enhancement of his sentence. These
convictions were in Will County, Illinois: Case No. 89-CF-922
for Unlawful Possession of a Controlled Substance; Case No.
91-CF-3111 for Unlawful Possession of a Controlled Substance;
and Case No. 96-CF-5455 for Unlawful Delivery of a Controlled
Substance. (Doc. 1, p. 3). He claims that the Illinois
statute which defines “delivery” of a controlled
substance includes a broader definition of the term than what
is found in federal law. For this argument, he refers to 720
ILCS 570/102(h), 720 ILCS 570/401, and 720 ILCS 570/407(b),
and compares the language with Section 4B1.2 of the United
States Sentencing Guidelines (“USSG”). (Doc. 1,
pp. 9-12). After Mathis, Petitioner claims that his
prior conviction(s), particularly the 1996 unlawful delivery
case, should no longer be used as a basis to enhance his
sentence as a career offender. He notes that if the
enhancement were removed, the applicable sentencing range
under the USSG would be considerably less than the 360-month
sentence that resulted from the executive clemency. If he
were re-sentenced under the revised guideline range,
Petitioner believes he could be eligible for release based on
time he has already served. (Doc. 1, p. 14).
Petitioner asserts that his acceptance of the commuted
sentence should not foreclose his ability to bring a
collateral challenge to the sentence he is continuing to
serve. (Doc. 1, pp. 13-14).
requests the Court to eliminate his “career
offender” status pursuant to Mathis so that he
may be re-sentenced under the USSG without the enhancement.
(Doc. 1, p. 15).
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 693, 694 (7th Cir. 1998). Here,
Petitioner is attacking his enhanced sentence, which points
to § 2255 as the proper avenue for relief.
very limited circumstances, a prisoner may employ § 2241
to challenge his federal conviction or sentence. 28 U.S.C.
§ 2255(e) contains a “savings clause” which
authorizes a federal prisoner to file a § 2241 petition
where the remedy under § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). See Hill, 695 F.3d at 648
(“‘Inadequate or ineffective' means that
‘a legal theory that could not have been presented
under § 2255 establishes the petitioner's actual
innocence.'”) (citing Taylor v. Gilkey,314 F.3d 832, 835 (7th Cir. 2002). See also United States
v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The
fact that Petitioner may be barred from bringing a
second/successive § 2255 petition is not, in itself,
sufficient to render it an inadequate remedy. In re
Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998) (§
2255 limitation on filing successive motions does not render
it an inadequate remedy for a prisoner who had filed a prior
§ 2255 motion). Instead, a petitioner under § 2241
must demonstrate the inability of a § 2255 motion to
cure the defect in the conviction. ...