United States District Court, S.D. Illinois
ARLEND E. STEWART, Petitioner,
T. G. WERLICH, Respondent.
MEMORANDUM AND ORDER
HERNDON, UNITED STATES DISTRICT JUDGE.
Arlend E. Stewart filed a petition for writ of habeas corpus
under 28 U.S.C. §2241 (Doc. 1) challenging the
calculation of his sentencing range under U.S.S.G. §
2K2.1(a)(4). He purports to rely on Mathis v. United
States, 136 S.Ct. 2243 (2016).
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. See, Doc. 8. Petitioner filed a reply
at Doc. 10.
Facts and Procedural History
pleaded guilty to one count of being a felon in possession of
a firearm (18 U.S.C. § 922(g)(1)) in the Western
District of Missouri. United States v. Stewart, No.
11-cr-6010-GAF (W.D. Mo.). There was not a written plea
agreement. On August 6, 2012, he was sentenced to 90 months
filed a direct appeal in which he argued that the court erred
in increasing his offense level by four levels under §
2K2.1(b)(6)(B) because he possessed the firearm in connection
with another felony offense, i.e., possession of a
distribution amount of crack cocaine. He argued that the
evidence was insufficient to support a finding that the
substance recovered in connection with his arrest actually
was crack cocaine. The Eighth Circuit affirmed. United
States v. Stewart, 500 Fed.Appx. 545, 546 (8th Cir.
counsel, petitioner filed a motion under 28 U.S.C. §
2255, invoking Alleyne v. United States, 33 S.Ct.
2151 (2013). The motion was denied, and the Eighth Circuit
denied a certificate of appealability. Stewart v. United
States, No. 13-cv-6099-GAF (W.D. Mo.).
filed a second § 2255 motion, citing Johnson v.
United States, 135 S.Ct. 2551 (2015). The motion was
dismissed in July 2016 because petitioner had not obtained
authorization from the Eighth Circuit to file a second
motion. Stewart v. United States, No. 16-6087-GAF
same day that he mailed his second § 2255 motion to the
Western District, Stewart mailed a request for authorization
to file a second § 2255 motion to the Eighth Circuit. He
cited Johnson, supra, and Welch v. United
States, 136 S.Ct. 1257 (2016). The government's
response in opposition explained the sentence calculation. He
had not been sentenced as an Armed Career Criminal. He was
assigned a base offense level of 20 under U.S.S.G.§
2K2.1(a)(4)(A) because he had a prior conviction for sale of
a controlled substance. He was assessed a two-level
enhancement under § 2K1.1(b)(4)(A) for possessing a
firearm that was stolen, and an additional four-level
enhancement under § 2K1.1(b)(6)(B) for possession of a
firearm in connection with another felony offense for a total
offense level of 26. He had a criminal history of V, which
resulted in a Guidelines range of 86 to 105 months.
Stewart v. United States, No. 16-2841, Doc. 4422798
(8th Cir. July 6, 2016). The Eighth Circuit denied
authorization on September 1, 2016. Stewart then filed his
habeas petition in this district.
preliminary review, this court described his grounds for
habeas relief as follows:
a result of the Supreme Court's decisions in
Johnson and Welch, Stewart's enhanced
sentence is unconstitutional.
sentencing court erred in applying the § 2K2.1(b)(6)(B)
enhancement because the evidence was insufficient to support
a finding that the substance recovered in connection with his
arrest was, in fact, crack cocaine.
a result of the Supreme Court's decision in
Mathis, Stewart's enhanced ...