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Horton v. Werlich

United States District Court, S.D. Illinois

July 19, 2017

LARRY L. HORTON, Petitioner,
v.
T.G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          David R. Herndon United States District Judge.

         Petitioner, currently incarcerated in FCI Greenville, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge his enhanced sentence as a career offender under USSG § 4B1.1 based on a prior drug conviction. (Doc. 1, p. 1).

         Petitioner was sentenced to 300 months' imprisonment on December 12, 2005 after pleading guilty to intentionally possessing cocaine base with intent to distribute. (Doc. 1, pp. 3-4). Previously, petitioner filed a motion pursuant to 28 U.S.C. § 2255; the motion was denied on September 20, 2006. Horton v. United States of America, 3:06-cv-388-jcs (W.D. Wis. September 20, 2006). Petitioner now argues that his conviction is improper pursuant to Mathis v. United States, 136 S.Ct. 2243 (2016).[1] (Doc. 1, p. 4).

         Rule 4 of the Rules Governing § 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 corpus cases.

         The Petition

         Petitioner argues that he should not have received an enhanced sentence under the career offender sentencing guideline and that the use of a prior conviction for marijuana possession for such purposes was improper. (Doc. 1, p. 1, 10-11). Petitioner's sentence was enhanced based on a prior conviction of possession with intent to deliver marijuana in violation of Wisconsin state law. (Doc. 1, p. 5). Petitioner argues that the Wisconsin statute is broader than the relevant guideline provision and thus, violates Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016). (Doc. 1, p. 6).

         Discussion

         Ordinarily, a prisoner may challenge his federal conviction or sentence only by means of a § 2255 motion brought before the sentencing court, and this remedy typically supersedes the writ of habeas corpus. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). A writ of habeas corpus under § 2255 requires the petitioner to file his challenge in the district that imposed the criminal sentence on him. See 28 U.S.C. § 2255(a). In this case, petitioner is clearly attacking his sentence. However, he has already filed a motion pursuant to § 2255, and that remedy is no longer available to him without leave of the appellate court.

         The “savings clause” under § 2255(e) allows a federal prisoner to file a petition under § 2241, if the remedy provided by § 2255 is “inadequate or ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e). In considering what it means to be “inadequate or ineffective, ” the Seventh Circuit has held that a federal prisoner should be permitted to seek relief under § 2241 “only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). A federal prisoner must meet 3 criteria in order to invoke the Savings Clause and obtain collateral relief pursuant to § 2241. First, a prisoner “must show that he relies on a [new] statutory-interpretation case rather than a constitutional case;” second, he “must show that he relies on a retroactive decision that he could not have invoked in his first § 2255 motion;” and third, “[the] sentence enhancement [must] have been a grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding.” Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (citations omitted) (internal quotation marks omitted).

         In his attempt to trigger application of the savings clause, petitioner relies on: Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016). Mathis addresses the “enumerated clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e); specifically it addresses what test a court should apply when determining whether a state conviction falls within the enumerated crimes clause.

         Petitioner has met the first two requirements to bring a § 2241 case. Mathis is a case of statutory interpretation. Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016) (Because Mathis “is a case of statutory interpretation, ” claims based on Mathis “must be brought, if at all, in a petition under 28 U.S.C. § 2241.”); 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 constitutional one.”).

         The petition also meets the second requirement. The Seventh Circuit has indicated that Mathis is a substantive rule. Dawkins, 829 F.3d at 551 (7th Cir. 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).

         Petitioner has also plausibly stated that his sentence enhancement may be a miscarriage of justice. In Mathis, the Supreme Court discussed the correct approach to applying the enumerated clause in the ACCA. 136 S.Ct. 2243 (U.S. 2016). A prior crime qualifies as a predicate offense only if its elements are the same as, or narrower than, those of the generic offenses listed in the statute. Id. at 2247. When a statute is indivisible, a court can determine whether the crime counts as an ACCA predicate by lining up the crime's elements alongside those of the generic offense to see if the elements match. Id. at 2248. In the case of a divisible statute, where the statute lists elements in the alternative, a court employs a “modified categorical approach” by which the court may examine a limited class of documents to determine what crime, with what elements, the defendant was convicted of. Id. at 2249. Mathis stands for the proposition that when a statute enumerates various facts that meet an element of the crime, a court must still apply the categorical approach, without reference to the facts of the specific case. Id. at 2251. That is, if the statute is indivisible, but specifies that certain alternative facts may satisfy an element, a court cannot look to the facts of the case to determine whether the conduct involved satisfied the generic version of the crime if the state statute involved is broader than the generic version. Id.

         The Sentencing Guidelines, like the ACCA, also refer to specific crimes as grounds for sentencing enhancements. Some of the language of the Sentencing Guidelines tracks the ACCA quite closely. Although Mathis specifically addressed burglary with reference to the language in the “crime of violence” section, other courts have applied the Mathis rationale to other aspects of the sentencing guidelines. See United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) (applying Mathis and concluding petitioner's conviction for delivery of a controlled substance was not a “controlled substance offense” within the meaning of the Guidelines). Here petitioner has argued that he was convicted under a state possession statute, and when the Mathis analysis is applied to that statute, it will be found to be ...


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