United States District Court, S.D. Illinois
ROBERT T. ROACH, Petitioner,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE
currently incarcerated in Federal Correctional Institution
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 and § 4B1.2
based on prior Illinois state court convictions for
controlled substance offenses. (Doc. 1, p. 7). Petitioner
requests that the Court vacate his original sentence and
re-sentence him without the career offender status
enhancement. (Doc. 1, p. 12).
was sentenced to 262 months' imprisonment. (Doc. 1, p.
10). If Petitioner had not been sentenced as a career
offender, his sentencing guidelines range would have been
between 110 and 137 months. Id. Petitioner appealed
his sentence, but his appeal was ultimately denied on April
15, 2015. (Doc. 1, p. 9). He also filed a § 2255 motion,
which did not survive Rule 4 review of the Rules Governing
§ 2254 cases. (Doc. 1, p. 2, 4, 9).
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 in Case No. 02-CF-1298 and Possession with
Intent to Deliver a Controlled Substance within 1000 feet of
a Church in violation of 720 ILCS 570/407(b)(1) in Case No.
06-CF-1730. (Doc. 1, p. 7). Petitioner's initial
guideline range reflected a Base Offense Level
(“BOL”) of 26 and a Criminal History
(“CH”) of V, which gave Petitioner a range of 110
to 137 months. (Doc. 1, p. 10). The Career Offender
Enhancement raised Petitioner's BOL to 34 and his CH to
VI, which made Petitioner's range 262 to 327 months.
Id. Petitioner argues that in light of Mathis v.
United States, 136 S.Ct. 2243 (U.S. 2016), his state
prior offenses do not match up with the generic offenses
described by the sentencing guidelines and that he improperly
received an enhancement. 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 after his conviction, appeal, and the disposition
of his § 2255 Petition. (Doc. 1, pp. 9-10). It is also
not a case recognizing a new constitutional right pursuant to
§ 2255(f)(3). 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.
(Doc. 1, p. 9).
“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 statutes,
they will be found to be broader than the generic crime of a
controlled substance offense. For that reason, the Court
directs Respondent Werlich to file a response so that the
Court may have the advantage of further briefing in deciding
IS 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