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Stewartt v. Werlich

United States District Court, S.D. Illinois

January 11, 2018

ARLEND E. STEWART, Petitioner,
v.
T. G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          HERNDON, UNITED STATES DISTRICT JUDGE.

         Petitioner 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).

         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. See, Doc. 8. Petitioner filed a reply at Doc. 10.

         Relevant Facts and Procedural History

         Stewart 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 imprisonment.

         Petitioner 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. 2013)

         Through 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.).

         Petitioner 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 (W.D. Mo.).

         On the 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.

         On preliminary review, this court described his grounds for habeas relief as follows:

         (1) As a result of the Supreme Court's decisions in Johnson and Welch, Stewart's enhanced sentence is unconstitutional.

         (2) The 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.

         (3) As a result of the Supreme Court's decision in Mathis, Stewart's enhanced ...


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