United States District Court, S.D. Illinois
SHANNON L. COTTON, No. 14735-026,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
currently incarcerated in the FCI-Greenville, brings this
habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the constitutionality of his confinement. He
asserts that in light of Mathis v. United States, --
U.S. --, 136 S.Ct. 2243, 2250 (2016), and United States
v. Hinkle, 832 F.3d 569 (5th Cir. 2016), he should not
have been subject to the career-offender enhancement under
the United States Sentencing Guidelines (“USSG”)
based on his 2 previous Illinois drug-related convictions.
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. After
carefully reviewing the Petition, the Court concludes that
this action is subject to dismissal.
November 20, 2007, in the Central District of Illinois,
Petitioner pled guilty to distributing 5 grams or more of
cocaine base, and to possession of 5 grams or more of cocaine
base with intent to distribute (21 U.S.C. § 841(a)(1)
and (b)(1)(B)). (Doc. 1, pp. 1-2); United States v.
Cotton, Case No. 07-cr-20019 (C.D. Ill.). He was
sentenced to 262 months, under the career offender
enhancement found in the United States Sentencing Guidelines
(“USSG”), § 4B1.1 and § 4B1.2(b),
because he had 2 prior state felony convictions for
controlled substance offenses. (Doc. 1, pp. 4-5); see
also Cotton, Case No. 07-cr-20019 (C.D. Ill.), Doc. 11.
1998, Petitioner had been convicted in Champaign County,
Illinois (Case No. 98-CF-345), of possession of a controlled
substance with intent to deliver, in violation of 720 ILCS
570/401(c)(1). (Doc. 1, p. 5). He also had a prior conviction
for unlawful delivery of a controlled substance (Champaign
County Case No. 00-CF-1559), in violation of 720 ILCS
570/407(b)(2). (Doc. 1, p. 5); Cotton, Case No.
07-cr-20019 (C.D. Ill.), Doc. 11. The Illinois statute
provides that it is “unlawful . . . to manufacture or
deliver, or possess with intent to manufacture or deliver, a
controlled substance[.]” 720 ILCS 570/401; (Doc. 1, p.
references the federal sentencing guideline definitions at
USSG § 4B1.2(b), which state that a “controlled
substance offense” is one “that prohibits the
manufacture, . . . distribution, or dispensing of a
controlled substance . . . or the possession of a controlled
substance . . . with intent to . . . distribute or
dispense.” A person who has 2 convictions for a
controlled substance offense (or a crime of violence) is
subject to an enhanced sentence as a “career
offender.” USSG § 4B1.1(a).
argues that his 2 Illinois drug-related convictions were
improperly used to enhance his federal sentence, because the
wording of the Illinois statute is different from the wording
found in § 4B1.2(b). He asserts that the Illinois
offense of “delivering” a controlled substance is
materially different from “distributing” or
“dispensing” a controlled substance, as provided
in the federal guidelines for application of the
career-offender enhancement. (Doc. 1, p. 5). Relying on
Mathis v. United States, -- U.S. --, 136 S.Ct. 2243
(2016), and United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016), Petitioner urges the Court to agree that the
career offender guidelines were “improperly
broadened” when his prior Illinois drug offenses were
used to enhance his sentence. (Doc. 1, p. 5).
general matter, “28 U.S.C. § 2241 and 28 U.S.C.
§ 2255 provide federal prisoners with distinct forms of
collateral relief. Section 2255 applies to challenges to the
validity of convictions and sentences, whereas § 2241
applies to challenges to the fact or duration of
confinement.” Hill v. Werlinger, 695 F.3d 644,
645 (7th Cir. 2012) (citing Walker v. O'Brien,
216 F.3d 626, 629 (7th Cir. 2000). See also Brown v.
Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998). Here,
Petitioner is attacking his conviction and sentence, which
points to § 2255 as the proper avenue for relief.
very limited circumstances, a prisoner may employ § 2241
to challenge his federal conviction or sentence. 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. § 2255(e). See Hill, 695 F.3d at 648
(“‘Inadequate or ineffective' means that
‘a legal theory that could not have been presented
under § 2255 establishes the petitioner's actual
innocence.'”) (citing Taylor v. Gilkey,
314 F.3d 832, 835 (7th Cir. 2002). See also United States
v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002);
In re Davenport, 147 F.3d 605, 609-10 (7th Cir.
1998) (§ 2255 limitation on filing successive motions
does not render it an inadequate remedy for a prisoner who
had filed a prior § 2255 motion).
Seventh Circuit has explained that, in order to fit within
the savings clause following Davenport, a petitioner
must meet three conditions. First, he must show that he
relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on
a decision that he could not have invoked in his first §
2255 motion, and that case must apply retroactively.
Lastly, he must demonstrate that there has been a
“fundamental defect” in his conviction or
sentence that is grave enough to be deemed a miscarriage of
justice. Brown v. Caraway, 719 F.3d 583, 586 (7th
Cir. 2013). See also Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012).
Court has found that a collateral attack invoking Mathis
v. United States, -- U.S. --, 136 S.Ct. 2243, 2250
(2016), facially satisfies the three conditions which would
allow consideration 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);
Wadlington v. Werlich, No. 17-cv-449-DRH (S.D. Ill.
July 17, 2017); Davis v. USA, 17-cv-379-DRH (S.D.
Ill. June 14, 2017); Warren v. Werlich, No.
17-cv-84-DRH (S.D. Ill. Mar. 27, 2017). However, the Seventh
Circuit on November 8, 2017, issued an opinion squarely
rejecting the very argument raised by Petitioner herein.
United States v. Redden, 875 F.3d 374 (7th Cir.
2017) (career offender enhancement of sentence based on
Illinois controlled substance convictions was proper,
distinguishing United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016)). Under this authority, the instant Petition
must be dismissed.
Redden court, referencing the Illinois statute's
definitions relating to ...