United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. HERNDON JUDGE
Michael Lovell 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, Doc. 12.
Petitioner responded to the motion at Doc. 14.
argues that the petition must be dismissed because petitioner
waived his right to file a collateral attack in his plea
Facts and Procedural History
to a written plea agreement, Lovell pleaded guilty to
conspiracy to manufacture a mixture or substance containing
methamphetamine, possession of methamphetamine-manufacturing
materials, and unlawful possession of ammunition by a felon
in the Southern District of Illinois. United States v.
Lovell, No. 12-cr-40108-JPG. The agreement provided that
it appeared that Lovell would meet the career offender
criteria, but he reserved the right to argue that he would
not. Plea Agreement, Doc. 12, Ex. 1, ¶ 4. The agreement
also recited that it appeared that the sentencing range would
be 151 to 188 months, but the parties recognized that the
court would ultimately calculate the range after reviewing
the presentence report. ¶ 3.
plea agreement contained a waiver of the right to appeal or
file a collateral attack:
1. The Defendant understands that by pleading guilty,
Defendant is waiving all appellate issues that might have
been available if Defendant had exercised the right to trial.
The Defendant is fully satisfied with the representation
received from defense counsel. The Defendant acknowledges
that the Government has provided complete discovery
compliance in this case. The Defendant has reviewed the
Government's evidence and has discussed the
Government's case, possible defenses and defense
witnesses with defense counsel.
2. The Defendant is aware that Title 18, Title 28, and other
provisions of the United States Code afford every defendant
limited rights to contest a conviction and/or sentence
through appeal or collateral attack. However, in exchange for
the recommendations and concessions made by the United States
in this plea agreement, the Defendant knowingly and
voluntarily waives his right to contest any aspect of his
conviction and sentence that could be contested under Title
18 or Title 28, or under any other provision of federal law,
except that if the sentence imposed is in excess of the
Sentencing Guidelines as determined by the Court (or any
applicable statutory minimum, whichever is greater), the
Defendant reserves the right to appeal the reasonableness of
the sentence. The Defendant acknowledges that in the event
such an appeal is taken, the Government reserves the right to
fully and completely defend the sentence imposed, including
any and all factual and legal findings supporting the
sentence, even if the sentence imposed is more severe than
that recommended by the Government.
3. Defendant's waiver of his right to appeal or bring
collateral challenges shall not apply to: 1) any subsequent
change in the interpretation of the law by the United States
Supreme Court or the United States Court of Appeals for the
Seventh Circuit that is declared retroactive by those Courts
and that renders the defendant actually innocent of the
charges covered herein; and 2) appeals based upon Sentencing
Guideline amendments that are made retroactive by the United
States Sentencing Commission (see U.S.S.G. § 1B1.10).
The Government reserves the right to oppose such claims for
Ex. 1, pp. 8-9.
filed objections to the presentence report. He objected to
being classified as a career offender, arguing that his
conviction for attempted escape was not a crime of violence
and his conviction for possession of a methamphetamine
manufacturing chemical was not a controlled substance
offense. No. 12-cr-40108-JPG, Doc. 32. At the sentencing
hearing in October 2013, the court overruled the objections,
found that petitioner qualified as a career offender, and
calculated the sentencing range as 151 to 188 months.
Petitioner was sentenced at the low end of the Guidelines
range, to 151 months on count 1 and 120 months on counts 2
and 3, to be served concurrently. No. 12-cr-40108-JPG, Doc.
2016, petitioner filed a motion under 28 U.S.C. § 2255
in the Southern District of Illinois challenging his
classification as a career offender under “the Johnson
case.” No. 16-589-JPG. The Federal Public Defender was
appointed to represent him. Through counsel, petitioner filed