United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Herndon United States District Judge.
currently incarcerated in the U.S. Penitentiary at Marion,
brings this habeas corpus action pursuant to 28 U.S.C. §
2241 to challenge his sentence. Petitioner is serving a
180-month sentence for possession with intent to distribute
crack cocaine and marijuana, possession of a firearm by a
convicted felon, and possession of a firearm in furtherance
of a drug-trafficking crime. United States v.
Perkins, No. 05-cr-30137-DRH (S.D. Ill) aff'd
United States v. Perkins, 548 F.3d 510 (7th Cir. 2008);
see also Perkins v. United States, No. 10-cv-104-DRH
(28 U.S.C. § 2255 proceeding); Perkins v. United
States, No. 16-cv-1114-DRH (28 U.S.C. § 2241
argues that his attorney was ineffective for failing to
challenge the 851 enhancement based on a prior state court
conviction for unlawful delivery of a controlled substance.
(Doc. 1, p. 3). In support of this argument, Petitioner cites
to Mathis v. United States, 136 S.Ct. 2243 (2016)
for the proposition that his previous Illinois drug
convictions should not have counted as “controlled
substances offenses” under the United States Sentencing
Guidelines. Id. Petitioner requests resentencing
without the enhancement. (Doc. 1, p. 4).
of the Rules Governing § 2254 Cases in United States
District Courts provides that upon preliminary consideration
by the district court judge, “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to
notify the petitioner.” Rule 1(b) of those Rules gives
this Court the authority to apply the rules to other habeas
corpus cases. After carefully reviewing the petition in the
present case, the Court concludes that petitioner is not
entitled to relief, and the petition must be dismissed.
a prisoner may challenge his federal conviction or sentence
only by means of a § 2255 motion brought before the
sentencing court, and this remedy typically supersedes the
writ of habeas corpus. Brown v. Caraway, 719 F.3d
583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012)). In this case, Petitioner is
clearly attacking his sentence. However, Petitioner argues
that § 2255 is not available to him because
Mathis was decided after his conviction, appeal, and
the disposition of his § 2255 Petition. It is also not a
case recognizing a new constitutional right pursuant to
“savings clause” under § 2255(e) allows a
federal prisoner to file a petition under § 2241, if the
remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See
28 U.S.C. § 2255(e). In considering what it means to be
“inadequate or ineffective, ” the Seventh Circuit
has held that a federal prisoner should be permitted to seek
relief under § 2241 “only if he had no reasonable
opportunity to obtain earlier judicial correction of a
fundamental defect in his conviction or sentence because the
law changed after his first 2255 motion.” In re
Davenport, 147 F.3d 605, 611 (7th Cir. 1998). A federal
prisoner must meet 3 criteria in order to invoke the Savings
Clause and obtain collateral relief pursuant to § 2241.
First, a prisoner “must show that he relies on a [new]
statutory-interpretation case rather than a constitutional
case;” second, he “must show that he relies on a
retroactive decision that he could not have invoked in his
first § 2255 motion;” and third, “[the]
sentence enhancement [must] have been a grave enough error to
be deemed a miscarriage of justice corrigible therefore in a
habeas corpus proceeding.” Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013) (citations omitted)
(internal quotation marks omitted).
Petitioner's reliance on Mathis is misplaced.
Petitioner's position was foreclosed by a recent Seventh
Circuit decision. Specifically, that court found that 720
ILCS 570/401 does not criminalize conduct that substantially
differs from the conduct described in § 4B1.2, and that
it is frivolous to argue that resentencing is justified
because the sentencing court considered an Illinois
controlled substance offense for the purposes of applying the
career offender in enhancement. United States v.
Redden, 875 F.3d 374, 374-75 (7th Cir. 2017). As the
argument is frivolous, Petitioner's counsel could not
have been ineffective for failing to raise it. Moreover,
because Petitioner has not raised a valid application of
Mathis, he has not triggered the savings clause.
Accordingly, the Petition will be dismissed with prejudice.
IS HEREBY ORDERED that the Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) is
DISMISSED with prejudice.
Petitioner wishes to appeal this dismissal, he may file a
notice of appeal with this Court within thirty days of the
entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal. See Fed. R.
App. P. 24(a)(1)(C). If petitioner does choose to appeal and
is allowed to proceed IFP, he will be required to pay a
portion of the $505.00 appellate filing fee in order to
pursue his appeal (the amount to be determined based on his
prison trust fund account records for the past six months)
irrespective of the outcome of the appeal. See Fed.
R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v.
Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008);
Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir.
1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th
Cir. 1998). A timely motion filed pursuant to Federal Rule of
Civil Procedure 59(e) may toll the 30-day appeal deadline. It
is not necessary for petitioner to obtain a certificate of
appealability. Walker v. O'Brien, 216 F.3d 626,
638 (7th Cir. 2000).
Clerk is DIRECTED to close this case and
enter judgment accordingly.