United States District Court, S.D. Illinois
LARRY A. NESBY, Petitioner,
B. TRUE, Respondent.
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
Larry A. Nesby filed a petition for writ of habeas corpus
under 28 U.S.C. §2241 (Doc. 1) challenging the
enhancement of his sentence as a career offender under
U.S.S.G. § 4B1.1. He purports to rely on Mathis v.
United States, 136 S.Ct. 2243 (2016). Now before the
Court is Respondent's Motion to Dismiss Petitioner's
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 for Lack of Jurisdiction, Doc. 7. Petitioner
responded to the motion at Doc. 10.
argues that the petition must be dismissed because
petitioner's sentence was commuted by presidential order.
Facts and Procedural History
was convicted of two counts of conspiracy to distribute in
excess of 50 grams of crack cocaine in the Southern District
of Illinois and was sentenced to life imprisonment.
United States v. Nesby, Case No. 01-cr-40047JPG.
to trial, the government filed an information pursuant to 21
U.S.C. § 851stating that Nesby had been convicted of
three prior qualifying felony drug offenses. Doc. 7, Ex. 3.
presentence investigation report stated that Nesby was a
career offender under U.S.S.G. § 4B1.1, and that his
Guidelines sentencing range was 360 months to life
imprisonment. Doc. 6. The sentencing court adopted those
findings. Ex. 2. However, because of the § 851
enhancement, he was subject to a mandatory minimum sentence
of life imprisonment on each count. In October 2002, he was
sentenced to two concurrent terms of life imprisonment. Ex.
filed a direct appeal and a number of unsuccessful collateral
attacks, which are described in respondent's motion. He
also filed an application for executive clemency, which met
with more success. In October 2016, President Obama commuted
his sentence to a term of 360 months imprisonment. Ex. 4.
relying on Mathis v. United States, 136 S.Ct. 2243
(2016), Nesby argues that his prior drug conviction for
unlawful delivery of a controlled substance in violation of
720 ILCS 570/401(d) does not qualify as a controlled
substance offense for purposes of the career offender
enhancement under U.S.S.G. § 4B1.2. The merits of his
argument are doubtful. The Seventh Circuit rejected an
identical argument in United States v. Redden, ___
F.3d, ___ 2017 WL 5162587 (7th Cir. November 8, 2017). In
addition, he ignores the fact that he was subject to a
mandatory minimum sentence of life imprisonment because of
the § 851 enhancement; his argument that he should not
have been classified as a career offender has no relevance to
the § 851 enhancement. However, respondent is correct
that this Court has no jurisdiction to consider a collateral
attack on a sentence imposed by order of the executive and
that this case is moot.
II, § 2 of the United States Constitution provides that
the President “shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in
Cases of Impeachment.” The Supreme Court has
interpreted the “broad power” conferred by the
Constitution “to allow plenary authority in the
President to ‘forgive' the convicted person in part
or entirely, to reduce a penalty in terms of a specified
number of years, or to alter it with conditions which are in
themselves constitutionally unobjectionable.”
Schick v. Reed, 95 S.Ct. 379, 385 (1974).
Significantly, the Supreme Court has held that “the
pardoning power is an enumerated power of the Constitution
and that its limitations, if any, must be found in the
Constitution itself.” Ibid. Therefore, this
Court has no jurisdiction to consider the propriety of the
360 month sentence set by the President.
petitioner's challenge to his original life sentence is
now moot because he is no longer serving that sentence. Any
opinion rendered by this Court as to the validity of the
original life sentence would be nothing more than an advisory
opinion. Article III, §2 limits the jurisdiction of a
federal court to live “Cases” and
“Controversies.” “[C]ases that do not
involve ‘actual, ongoing controversies' are moot
and must be dismissed for lack of jurisdiction.”
Federation of Advertising Industry Representatives v.
Chicago, 326 F.3d 924, 929 (7th Cir. 2014).
anticipated respondent's argument. In his petition, he
cited Simpson v. Battaglia, 458 F.3d 585 (7th Cir.
2006), and Madej v. Briley, 371 F.3d 898 (7th Cir.
2004), for the proposition that the commutation of his
sentence does not render his petition moot. See, Doc. 1, p.
14. However, those cases did not involve Presidential
commutation of federal sentences. Both of those cases
involved challenges under 28 U.S.C. § 2254 to death
sentences imposed by the state. In both cases, the death
sentences were commuted by the Illinois governor to life in
prison. The Seventh Circuit held that the cases were not
rendered moot by the governor's commutation because of
the supremacy of the federal constitution. “Although
the state contends that the Governor's commutation bars
that option as a matter of state law, the Constitution
supersedes any incompatible state principles.”
Madej, 371 F.3d at 899. “More importantly,
Illinois does not point to a federal standard in
which executive clemency at the state level operates to limit
the reach of federal habeas ...