United States District Court, S.D. Illinois
RUBEN D. HUGHES, No. 7997-424, Petitioner,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
R. HERNDON, DISTRICT JUDGE
currently incarcerated in the FCI-Greenville, brings this
habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the constitutionality of his confinement. He
asserts that in light of Mathis v. United States, --
U.S. --, 136 S.Ct. 2243, 2250 (2016), he should not have been
subject to a sentencing enhancement under the United States
Sentencing Guidelines (“USSG”) based on his prior
Illinois drug-related conviction. (Docs. 1 and 1-1).
case is now before the Court for a preliminary review of the
Petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in United States District Courts. Rule 4 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, such as this action under 28 U.S.C. § 2241. After
carefully reviewing the Petition, the Court concludes that
this action is subject to dismissal.
1997, in the Northern District of Illinois, petitioner was
charged in a six count superseding indictment (97-cr-670)
with conspiracy to distribute and possess with intent to
distribute cocaine and cocaine base. (Doc. 1-1, p. 1). On
June 15, 1998, prior to trial, the government filed a Notice,
pursuant to 21 U.S.C. § 851, advising petitioner that
upon conviction, it would seek enhanced penalties based on
(1) petitioner's 1990 felony drug conviction in Will
County, Illinois (89-CF-576) for possession of a controlled
substance with intent to deliver and (2) the fact that the
offense with which petitioner was charged involved more than
five kilograms of cocaine and more than 50 grams of cocaine
base (“crack”). (Doc. 1-1, p. 2; Doc. 1-2).
1998, petitioner was convicted on five counts of trafficking
cocaine and cocaine base, and one count of illegal firearms
possession. Following an evidentiary hearing concerning the
amount of cocaine base processed by petitioner's
organization, the Court sentenced him to life imprisonment on
each of the five drug trafficking charges (Counts One through
Five). The Court also sentenced petitioner to 10 years on the
firearms violation (Count Six). See U.S. v. Hughes,
2004 WL 783070 (N.D. Ill. Jan. 13, 2004).
direct appeal the Seventh Circuit upheld the convictions and
sentences on four of six counts. See United States v.
Hughes, 213 F.3d 323, 335-36 (7th Cir.), vacated, 531
U.S. 975, 121 S.Ct. 423, 148 L.Ed.2d 432 (2000), reinstated
in part, 5 Fed.Appx. 507 (7th Cir.2001). In 2008 petitioner
moved for a reduced sentence under 18 U.S.C. §
3582(c)(2), invoking amendments to the sentencing guidelines.
The district court found petitioner ineligible for
resentencing and denied the motion. On July 13, 2010, the
Seventh Circuit affirmed the judgment. U.S.v.
hughes, 384 Fed.Appx. 509 (7th Cir. 2010).
recently, petitioner moved for a reduced sentence under 18
U.S.C. § 3582(c)(2), invoking Amendment 782 to the
United States Sentencing Guidelines. (97-cr-670, Doc. 216).
That motion was granted on June 15, 2017, and
petitioner's previously imposed sentence of imprisonment
of Life was reduced to 360 months. (97-cr-670, Doc. 236).
now claims that under Mathis v. United States, __
U.S. __, 136 S.Ct. 2243, 2250 (2016), it was improper to
enhance his federal sentence on the basis of his Illinois
drug conviction. He argues that the statute under which he
was convicted in Illinois (now found at 720 ILCS 570/401) is
broader than the federal generic offense under 21 U.S.C.
Illinois statute criminalizing possession with intent to
deliver provided that it is unlawful “knowingly to
manufacture or deliver, or possess with intent to manufacture
or deliver, a controlled or counterfeit substance[.]”
720 ILCS 570/401 (1997); (formerly Ill. Rev. Stat. Ch. 56
1/2, para. 1401). Petitioner contrasts this statute with the
federal offense language, which makes it unlawful to
knowingly or intentionally “manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance[.]” 21 U.S.C.
§ 841(a)(1). He argues that the Illinois statute is
indivisible, and defines the essential element of
“delivery” broadly enough to include solicitation
of unlawful delivery, offering to sell without possession,
and to share a controlled substance without an exchange of
consideration. He concludes that because § 841(a)(1)
does not criminalize solicitation of unlawful delivery of a
controlled substance, an offer to sell, or sharing a
controlled substance, the elements of the Illinois crime is
overly broad and does not match the federal statute. On this
basis, petitioner seeks to be resentenced without the
allegedly improper enhancement.
Court has found that a collateral attack invoking Mathis
v. United States, __ U.S. __, 136 S.Ct. 2243, 2250
(2016), facially satisfies the three conditions which would
allow consideration in a § 2241 proceeding under the
savings clause of § 2255(e). See e.g., Hoskins v.
Werlich, No. 17-cv-652-DRH (S.D. Ill. July 28, 2017);
Wadlington v. Werlich, No. 17-cv-449-DRH (S.D. Ill.
July 17, 2017); Davis v. USA, 17-cv-379-DRH (S.D.
Ill. June 14, 2017); Warren v. Werlich, No.
17-cv-84-DRH (S.D. Ill. Mar. 27, 2017). However, the Seventh
Circuit on November 8, 2017, issued an opinion squarely
rejecting a challenge to the enhancement of a federal
sentence that had been based on prior Illinois drug
convictions. United States v. Redden, 875 F.3d 374
(7th Cir. 2017) (career offender enhancement of sentence
based on Illinois controlled substance convictions was
proper, distinguishing United States v. Hinkle, 832
F.3d 569 (5th Cir. 2016)). Petitioner challenges the
Redden decision and argues that this Court should
not apply it to his case. However, Redden is
controlling authority in this Circuit, and based on the
Redden opinion, the instant Petition must be
Redden court, referencing the Illinois statute's
definitions relating to ...