United States District Court, S.D. Illinois
MEMORANDUM and ORDER
Herndon, United States District Judge.
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.
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
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).
Facts and Procedural History
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
plea agreement contained a waiver of the right to file a
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
Case No. 11-cr-00093-JRG, Doc. 11, pp. 6-7.
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.
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 §
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 §
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 §
2255 purposes given the ...