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Nesby v. B. True

United States District Court, S.D. Illinois

July 6, 2017

LARRY A. NESBY, No. 05328-025, Petitioner
B. TRUE, Respondent.


          David R. Herndon, United States District Judge.

         Petitioner, 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.

         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).


         Petitioner 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).

         On 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, pp. 2-3).

         On 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).

         The Petition

         Petitioner 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).

         Additionally, 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).

         Petitioner 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).


         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 693, 694 (7th Cir. 1998). Here, Petitioner is attacking his enhanced sentence, which points to § 2255 as the proper avenue for relief.

         Under 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. ...

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