United States District Court, S.D. Illinois
MELVIN HERBERT, No. 17117-424, Petitioner,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE.
Melvin Herbert is currently incarcerated in the Federal
Correctional Institution located at Greenville, Illinois
(“FCI-Greenville”). He brings this federal habeas
corpus action pursuant to 28 U.S.C. § 2241 in order to
challenge his sentence in United States v. Melvin
Herbert, No. 04-cr-0464-5 (N.D. Ill. 2006)
(“criminal case”). Relying on the United States
Supreme Court's decision in Mathis v. United
States, 579 U.S. ___, 136 S.Ct. 2243 (2016), Herbert
claims that his prior conviction in Illinois for residential
burglary (No. 86-cr-0842502) no longer triggers an enhanced
sentence as a career offender under the United States
Sentencing Guidelines (“U.S.S.G.”) § 4B1.1.
(Doc. 1, p. 1). For this reason, he asks the Court to vacate
his sentence. (Doc. 1, p. 11).
matter is now before the Court for review of the § 2241
Petition pursuant to Rule 4 of the Rules Governing §
2254 Cases in United States District Courts, which 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
general matter, 28 U.S.C. § 2241 and 28 U.S.C. §
2255 provide federal prisoners with “distinct forms of
collateral relief.” Hill v. Werlinger, 695
F.3d 644, 645 (7th Cir. 2012). Section 2255 applies to
challenges to the validity of convictions and sentences, and
§ 2241 applies to challenges to the fact or duration of
confinement. Id. at 645 (citing Walker v.
O'Brien, 216 F.3d 626, 629 (7th Cir. 2000)). See
also Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012);
Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998). Herbert challenges his sentence, which points to
§ 2255 as the proper avenue for relief.
§ 2255(e) contains a “savings clause” which
authorizes a federal prisoner to file a § 2241 petition
where the remedy under § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). See Hill, 695 F.3d at 648
(“‘Inadequate or ineffective' means that
‘a legal theory that could not have been presented
under § 2255 establishes the petitioner's actual
innocence.'”) (citing Taylor v. Gilkey,
314 F.3d 832, 835 (7th Cir. 2002)). See also United
States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir.
2002); In re Davenport, 147 F.3d 605, 609-10 (7th
Cir. 1998) (§ 2255 limitation on filing successive
motions does not render it an inadequate remedy for a
prisoner who had filed a prior § 2255 motion).
conditions must be satisfied to bring a claim within the
savings clause following Davenport. See Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013); Brown v.
Rios, 696 F.3d at 640. First, the petitioner must show
that he relies on a new statutory interpretation case rather
than a constitutional case. Id. Second, he must show
that he relies on a decision that he could not have invoked
in his first § 2255 motion, and that case must
apply retroactively. Id. Third, he must demonstrate
that there has been a “fundamental defect” in his
conviction or sentence that is grave enough to be deemed a
miscarriage of justice. Id.
Court has found that a collateral attack under Mathis v.
United States, 579 U.S. ___, 136 S.Ct. 2243, 2250
(2016), facially satisfies the three Davenport
conditions. 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). And, given the rapidly developing case
law addressing sentence enhancements based on Illinois
burglary convictions, the Court deems it appropriate to order
a response. See, e.g., Shields v. United States, 885
F.3d 1020 (7th Cir. Mar. 21, 2018) (recent precedent
forecloses argument that Illinois residential burglary
conviction no longer qualifies as a violent felony under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)); Smith v. United States, 877 F.3d 720
(7th Cir. Dec. 13, 2017) (Illinois residential burglary
conviction based on 1982 statute counts as a violent felony
under § 924(e)); United States v. Haney, 840
F.3d 472 (7th Cir. 2016) (pre-1982 version of Illinois law
covering ordinary burglary did not satisfy federal definition
and no longer counted as violent felony under § 924(e));
Dawkins v. United States, 809 F.3d 953 (7th Cir.
2016) (pre-Mathis case holding that Illinois
residential burglary is equivalent to generic burglary of a
dwelling and counts as an enumerated crime of violence under
U.S.S.G. § 4B1.2(a)(2)); Dawkins v. United
States, 829 F.3d 549 (7th Cir. 2016)
(post-Mathis case questioning whether
Mathis makes Illinois residential burglary
conviction suspect under the ACCA and U.S.S.G., but declining
to address question and directing petitioner to bring
independent claim under § 2241, if at all).
IT IS HEREBY ORDERED that Respondent Werlich
shall answer or otherwise plead within thirty days of the
date this order is entered.This preliminary order to respond
does not preclude the Government from raising any objection
or defense it may wish to present. Service upon the United
States Attorney for the Southern District of Illinois, 750
Missouri Avenue, East St. Louis, Illinois, shall constitute
IS ALSO ORDERED that pursuant to Local Rule
72.1(a)(2), this cause is referred to United States
Magistrate Judge Clifford J. Proud for further pre-trial
IS FURTHER ORDERED that this entire matter be
REFERRED to United States Magistrate Judge
Proud for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
is ADVISED of his continuing obligation to
keep the Clerk (and each opposing party) informed of any
change in his whereabouts during the pendency of this action.
This notification shall be done in writing and not later than
seven (7) days after a transfer or other change in address
occurs. Failure to provide such notice may result in
dismissal of this action. See Fed. R. Civ. P. 41(b).
IS SO ORDERED.