United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon United States District Judge.
currently incarcerated in U.S. Penitentiary Marion, 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 prior state court convictions for
unlawful delivery of a controlled substance. (Doc. 1, p. 2).
was sentenced to 188 months' imprisonment on April 17,
2015 after an open guilty plea on 3 counts of violating 21
U.S.C. § 841(a)(1) and (b)(1)(C), to be served
concurrently. (Doc. 1, pp. 2-3). If Petitioner had not been
sentenced as a career offender, his sentencing guidelines
range would have been between 77 and 96 months. (Doc. 1, p.
3). Petitioner appealed and his conviction was affirmed on
October 20, 2015. Id.; United States v.
Holmes, 623 F. App'x 813 (7th Cir. 2015). Petitioner
did not file a § 2255 motion.
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
to his federal conviction, Petitioner had been convicted of
Unlawful Delivery of a Controlled Substance in violation of
720 ILCS 570/401(d) and Unlawful Delivery of a Controlled
Substance Within 1, 000 Feet of a Housing Project in
violation of 720 ILCS 570/407(b)(1). (Doc. 1, p. 2). Because
of these prior convictions, the applicable guideline range
for Petitioner effectively doubled. (Doc. 1, p. 3).
Petitioner argues that in light of Mathis v. United
States, 136 S.Ct. 2243 (U.S. 2016), his predicate
Illinois offenses should not be counted for purposes of the
career offender enhancement. (Doc. 1, pp. 10-13).
Specifically, Petitioner argues that under the Illinois
statutes, the term “deliver” or
“delivery” are more broadly defined then the
generic “controlled substance offenses” under
section 4B1.2 of the Sentencing Guidelines. (Doc. 1, p. 10).
Petitioner states that “deliver” under Illinois
state law includes attempt and also includes transactions
with or without consideration. (Doc. 1, p. 11). In contrast,
the Sentencing Guidelines do not encompass attempt or
reference consideration. Id.
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, Petitioner argues that
§ 2255 is not available to him because Mathis
was decided more than a year after his conviction became
final and is not a case recognizing a new constitutional
right pursuant to § 2255(f)(3). (Doc. 1, p. 4)
Petitioner also points to Dawkins v. United States,
829 F.3d 549 (7th Cir. 2016) for the proposition that in the
Seventh Circuit, cases raising Mathis must be
brought pursuant to § 2241. Id.
“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).
has met the first two requirements to bring a § 2241
case. Mathis is a case of statutory interpretation,
not a case announcing a constitutional right. 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
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).
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.
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 his sentence was enhanced pursuant
to 2 convictions for state court crimes, and when the
Mathis analysis is applied to the relevant statute,
it will be found to be broader than the generic crime of a
controlled substance offense. For that reason, the Court
orders Respondent True to file a response so that the Court
may have the advantage of further briefing in deciding this
HEREBY ORDERED that Respondent shall answer the petition or
otherwise plead within THIRTY days of the date this order is
entered. This preliminary order to respond does not, of
course, preclude the State from making whatever waiver,
exhaustion, or timeliness argument it may wish to present.
Service upon the United States Attorney for the Southern