United States District Court, S.D. Illinois
BERNARD DOUGLAS, No. 13373-026, Petitioner,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
R. Herndon, United States District Judge
se Petitioner Bernard Douglas, currently incarcerated in
the Federal Correctional Institution at Greenville, Illinois
(FCI-Greenville), brings this habeas corpus action pursuant
to 28 U.S.C. § 2241 to challenge the constitutionality
of his confinement. Relying on the recent case of Mathis
v. United States, __ U.S. __ __, 136 S.Ct. 2243 (2016)
and other recent decisions, he argues that his prior drug
conviction should not have been used to impose an enhanced
sentence under 21 U.S.C. § 851.
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).
2008, Petitioner pled guilty to 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(A) for conspiring to distribute cocaine and
cocaine base. (Doc. 1, p. 3). Petitioner was sentenced to 240
months' imprisonment. Id. Petitioner appealed
and later filed a 28 U.S.C. § 2255 petition, which was
ultimately denied. Id.
criminal case, Petitioner's sentence was enhanced
pursuant to 21 U.S.C. § 851. (Doc. 1, pp. 3-4). The
sentencing enhancement was based on the fact that Petitioner
had a previous drug conviction, of Possession of a Controlled
Substance, 720 ILCS 570/402. (Doc. 1, p. 4). Petitioner
argues that this prior drug conviction was improperly
considered a predicate offense under 21 U.S.C. § 851,
under the reasoning in Mathis and related cases.
(Doc. 1, pp. 3-8).
prisoner may employ § 2241, as opposed to § 2255,
to challenge his federal conviction or sentence under very
limited circumstances. Specifically, 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.
Petitioner argues that, in light of Mathis and
related authority, his prior Illinois drug conviction does
not qualify as a predicate offense for a § 851
enhancement. (Doc. 1, pp. 3-8). Petitioner apparently seeks
the Court to hold that the § 851 enhancement was
improper so that he may be resentenced without the
undersigned has explained in a number of prior decisions,
this type of challenge facially satisfies the conditions to
be considered in a § 2241 proceeding under the savings
clause of § 2255(e). See e.g., Hoskins v.
Werlich, No. 17-cv-652-DRH (S.D. Ill. July 28, 2017);
Warren v. Werlich, No. 17-cv-84-DRH (S.D. Ill. Mar.
27, 2017); Davis v. USA, 17-cv-379-DRH (S.D. Ill.
June 14, 2017); Wadlington v. Werlich, No.
17-cv-4499-DRH (S.D. Ill. July 17, 2017). However, as the
Court has previously noted, Mathis involved the
Armed Career Criminal Act. United States v. Hinkle,
832 F.3d 569, 574 (5th Cir. 2016). Thus, the Mathis
decision may or may not be applicable to Petitioner's
sentence, where the sentencing enhancement was determined
based on 21 U.S.C. § 851 and not the ACCA statute.
given the limited record before the Court and the
still-developing application of the Mathis decision,
it is not plainly apparent that Petitioner is not entitled to
habeas relief. See Rule 4 of the Rules Governing
§ 2254 Cases in United States District Courts.
Therefore, the Court finds it appropriate to order a response
to the Petition.
IS HEREBY ORDERED that Respondent Werlich shall
answer or otherwise plead within thirty days of the date this
order is entered (on or before October 5,
2017). This preliminary order to respond does
not, of course, preclude the Government from raising any
objection or defense it may wish to present. Service upon the
United States Attorney for the Southern District of Illinois,
750 Missouri Avenue, East St. Louis, Illinois, shall
constitute sufficient service.
IS FURTHER ORDERED that pursuant to Local Rule
72.1(a)(2), this cause is referred to United States
Magistrate Judge Clifford J. ...