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Wiggins v. Werlich

United States District Court, S.D. Illinois

September 6, 2017

RONALD WIGGINS # 14047-026, Petitioner,
v.
T. G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON, DISTRICT JUDGE

         Petitioner Ronald Wiggins is currently incarcerated at the Federal Correctional Institution located in Greenville, Illinois (“FCI-Greenville”). He brings this habeas action pursuant to 28 U.S.C. § 2241 in order to challenge his enhanced sentence as a career offender based on two prior Illinois drug convictions. (Doc. 1, p. 2).

         This matter is now before the Court for review of the § 2241 Petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District Courts, which 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 § 2241 Petition survives preliminary review under this standard.

         I. Background

         In 2004, Wiggins was convicted in the United States District Court for the Central District of Illinois of robbing a credit union in violation of 18 U.S.C. § 2113(a). See United States v. Wiggins, No. 03-CR-20032-JES-1 (C.D. Ill.) (“criminal case”). At the time, Wiggins had two prior state drug trafficking convictions for possession with intent to deliver a controlled substance and for manufacturing with intent to deliver a controlled substance in Cook County Case Nos. 95-CR-01364 and 93-CR-535501. (Doc. 1, pp. 2, 7). Consequently, Wiggins was sentenced as a career offender to 20 years of imprisonment.

         Wiggins' appointed attorney filed a notice of appeal. United States v. Wiggins, App. No. 04-1698 (7th Cir.). Because he was unable to find a non-frivolous issue for appeal, however, the attorney subsequently sought permission to withdraw under Anders v. California, 386 U.S. 738 (1967). The Seventh Circuit granted the motion and dismissed the appeal on June 30, 2005. United States v. Wiggins, 138 F. App'x 842 (7th Cir. 2005).

         On September 7, 2006, Wiggins filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Wiggins v. United States, No. 06-CV-2169 (C.D. Ill. 2006) (“collateral attack”). Wiggins argued unsuccessfully that he was denied the effective assistance of counsel. Id. The § 2255 motion was denied on December 3, 2007. Id; Wiggins v. United States, 2007 WL 4277442 (C.D. Ill.Dec. 3, 2007). Wiggins filed a notice of appeal, which the Seventh Circuit construed as an application for a certificate of appealability and denied. Wiggins v. United States, App. No. 08-1100 (7th Cir. Apr. 8, 2008).

         Wiggins then filed a second § 2255 motion on January 31, 2013, again arguing that his conviction must be set aside based on the ineffective assistance of his counsel. Wiggins v. United States, No. 06-CV-2169 (C.D. Ill. 2006) (“second collateral attack”). The district court dismissed the second § 2255 motion the following day, after recognizing it as a second or successive motion for which it lacked jurisdiction to consider. Wiggins v. United States, 2013 WL 411484 (C.D. Ill. Feb. 1, 2013). The Seventh Circuit denied Wiggins certification to appeal and informed him that he could only pursue a successive § 2255 motion if he received prior authorization to do so. Wiggins v. United States, App. No. 13-1366 (7th Cir. Oct. 8, 2013) (Doc. 15).

         Undeterred, Wiggins filed another § 2255 motion on May 5, 2014. Wiggins v. United States, No. 06-CV-2169 (C.D. Ill. 2006) (“third collateral attack”). Relying on Alleyne v. United States, 133 S.Ct. 2151 (2013), he argued that his sentence violated the Sixth Amendment. The district court dismissed the third collateral attack for lack of jurisdiction two days later. Wiggins v. United States, 2014 WL 1856727 (C.D. Ill. May 7, 2014). The Seventh Circuit denied Wiggins' subsequent request for a certificate of appealability. Wiggins v. United States, App. No. 14-2203 (7th Cir. Nov. 14, 2014). At the same time, the Seventh Circuit also warned Wiggins that he “risks monetary sanctions and a restriction on future filings should he continue launching frivolous collateral attacks.” Id. (citing Alexander v. United States, 121 F.3d 312, 315 (7th Cir. 1997)).

         On June 14, 2016, Wiggins sought authorization to file a successive § 2255 motion, in order to challenge his sentence as a career offender under the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). Wiggins v. United States, App. No. 16-2142 (7th Cir.) (Doc. 7). The Seventh Circuit would not authorize a second or successive § 2255 motion because it concluded that his sentence is consistent with Johnson. Id.

         On September 12, 2016, he nevertheless filed a letter in the district court that was construed as a § 2255 motion. (Doc. 81, criminal case). The court forwarded the letter to the Seventh Circuit for consideration. Wiggins v. United States, App. No. 16-3417 (7th Cir. 2016). On September 20, 2016, the Seventh Circuit again denied Wiggins authorization to file a successive § 2255 motion. (Doc. 83, criminal case). Wiggins attempted to challenge his career offender designation, this time arguing that his two drug trafficking convictions are not qualifying “controlled substance offenses” under U.S.S.G. § 4B1.2(b). The Seventh Circuit explained that his claim was barred under § 2244(b)(2) because it was not “newly available.” Id. (citing Brannigan v. United States, 249 F.3d 584, 589 (7th Cir. 2001); Bennett v. United States, 119 F.3d 470, 472 (7th Cir. 1997)). To the extent he relied on Johnson, the Seventh Circuit concluded that his claim was also barred because Wiggins was previously denied permission to file a successive § 2255 motion on the basis of Johnson. (Doc. 83, criminal case).

         II. The Petition

         In the instant § 2241 Petition, Wiggins asserts that his two prior Illinois drug trafficking convictions no longer trigger an enhanced sentence under the United States Sentencing Guidelines based on the Supreme Court's decision in Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016). (Doc. 1, pp. 7-10) (citing U.S.S.G. § 4B1.1 and 4B1.2). Both prior convictions resulted from violations of 720 ILCS § 570/401, a statute that Wiggins maintains is divisible. (Doc. 1, p. 7). The terms “manufacture” or “deliver” in the Illinois statute are allegedly more broadly defined than the generic “controlled substance offenses” ...


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