Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Piercee v. True

United States District Court, S.D. Illinois

January 9, 2018

RONALD AARON PIERCE, Petitioner,
v.
WARDEN B. TRUE, Respondent.

          MEMORANDUM and ORDER

          Herndon, United States District Judge.

         Petitioner Ronald Aaron Pierce filed a petition for writ of habeas corpus under 28 U.S.C. §2241 (Doc. 1) challenging the enhancement of his sentence under U.S.S.G. § 2K2.1(a)(4). 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. 9.

         Respondent argues that the petition must be dismissed because an incorrect application of an advisory Sentencing Guideline is not a miscarriage of justice that can be remedied in a collateral proceeding.

         Petitioner was granted an extension of time in which to respond to the motion. His response was due by December 18, 2017. See, Doc. 12. Petitioner has not filed a response. The court deems the failure to respond to be an admission of the merits of the motion pursuant to SDIL - LR 7.1(c).

         Relevant Facts and Procedural History

         Pursuant to a written plea agreement, Pierce pleaded guilty to one count of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) in the Eastern District of Tennessee. United States v. Pierce, Case No. 11-cr-00093-JRG. On September 17, 2012, he was sentenced to 108 months imprisonment.

         The plea agreement contained a waiver of the right to file a collateral attack:

In addition, the defendant knowingly and voluntarily waives the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack the defendant's conviction(s) and/or resulting sentence. The parties agree that the defendant retains the right to raise, by way of collateral review under § 2255, claims of ineffective assistance of counsel or prosecutorial misconduct not known to the defendant by the time of the entry of judgment.

Case No. 11-cr-00093-JRG, Doc. 11, pp. 6-7.

         Through counsel, petitioner filed a motion under 28 U.S.C. § 2255. Citing Johnson v. United States, 135 S.Ct. 2551 (2015), he argued that his prior conviction for Tennessee aggravated burglary should not have been used to enhance his sentence under U.S.S.G. § 2K2.1(a)(4). Case No. 11-cr-00093-JRG, Doc. 23. He dismissed his motion without prejudice after the Supreme Court decided in Beckles v. United States, 137 S.Ct. 886 (2017), that Johnson does not extend to Sentencing Guidelines cases. Case No. 11-cr-00093-JRG, Doc. 29.

         Analysis

         Ostensibly relying on Mathis v. United States, 136 S.Ct. 2243 (2016), Pierce argues that his prior conviction for aggravated burglary under Tennessee law no longer qualifies as a crime of violence within the meaning of § 2K2.1(a)(4).[1]

         Petitioner cites United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), in which the Sixth Circuit held that Tennessee aggravated burglary is broader than generic burglary and therefore does not qualify as a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Seventh Circuit has ruled the opposite regarding the Illinois residential burglary statute, which is similar to the Tennessee statute in relevant respects, and has expressly rejected the reasoning of the Stitt majority. Smith v. United States, F.3d, 2017 WL 6350072, at *3 (7th Cir. Dec. 13, 2017). Further, petitioner assumes that Mathis would apply to U.S.S.G. § 2K2.1 and that Stitt would apply to an enhancement under the Guidelines as well as to an enhancement under the Armed Career Criminal Act. Therefore, the merits of petitioner's argument are not at all clear. However, it is not necessary to wade into the merits because it is clear that Pierce cannot bring a Mathis claim in a § 2241 petition.

         There are some errors that can be raised on direct appeal but not in a collateral attack such as a § 2255 motion or a § 2241 petition. A claim that a defendant was erroneously treated as a career offender under the advisory Sentencing Guidelines is one such claim. Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), supplemented on denial of rehearing, 724 F.3d 915 (7th Cir. 2013). See also, United States v. Coleman, 763 F.3d 706, 708-09 (7th Cir. 2014) (“[W]e held in Hawkins that the error in calculating the Guidelines range did not constitute a miscarriage of justice for ยง 2255 purposes given the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.