United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE.
Demario Malone, who is currently incarcerated in the Federal
Correctional Institution in Marion, Illinois, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1). Relying on the recent case Dean v.
United States, 137 S.Ct. 1170 (2017), he challenges the
sentence he received in United States v. Malone,
12-cr-30330-DRH (S.D. Ill. 2013) (“Criminal
Case”). (Doc. 1). The Court concludes that the Petition
does not survive preliminary review under Rule 4 and Rule
1(b) of the Rules Governing Section 2254 Cases in the United
States District Courts.
November 1, 2013, pursuant to a written plea agreement,
petitioner entered a guilty plea in his Criminal Case to
charges of conspiracy to distribute and possess with the
intent to distribute marijuana (Count 1) and possession of a
firearm in furtherance of a drug trafficking crime (Count 2).
(Doc. 1, p. 3). Petitioner received a 70-month prison
sentence under Count 1 and a 60-month sentence under Count 2,
to run consecutively. (Doc. 1, p. 3).
appealed the sentence, but the appeal was dismissed because
petitioner waived his right to appeal in his plea agreement.
(Doc. 1, pp. 3-4). Notably, petitioner's appeal waiver
included an acknowledgment that he was knowingly and
voluntarily waiving his right to contest any aspect of his
conviction and sentence that could be contested under Title
18 or Title 28, or under any other provision of federal law,
except that if the sentence imposed is in excess of the
Sentencing Guidelines. Criminal Case, Doc. 131, p. 7.
also filed a § 2255 petition raising an ineffective
assistance of counsel claim. (Doc. 1, p. 4). The petition was
unsuccessful. In its order dismissing the petition, the Court
observed that petitioner waived his right to file the
petition in his plea agreement. See Malone v. United
States, No. 15-cv-1079-DRH (S.D. Ill. March 7, 2016),
Doc. 24, p. 8. The Court also noted that petitioner's
sentence was within the statutory maximum provided by the
statute of conviction and applicable guideline range,
rendering his waiver enforceable. Id. at p. 10.
instant § 2241 Petition claims that Dean v. United
States, 137 S.Ct. 1170 (2017) renders petitioner's
sentence unlawful. In Dean, the Supreme Court
“held that 18 U.S.C. § 924(c)(1)(D)(ii), which
requires a sentence under § 924(c) to run consecutively
to the sentence for the offense in which the firearm was
used, does not implicitly forbid the district court to choose
a term of imprisonment for the predicate offense so that the
aggregate imprisonment comports with the sentencing criteria
in 18 U.S.C. § 3553(a).” United States v.
Wheeler, 857 F.3d 742, 745 (7th Cir. 2017).
Dean abrogated United States v. Roberson,
474 F.3d 432 (7th Cir. 2007), which “held that a
district court must not reduce the sentence for the predicate
crime in order to offset the consecutive § 924(c)
sentence.” United States v. Wheeler, 857 F.3d
742, 745 (7th Cir. 2017).
of the Rules Governing Section 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) gives the Court the
authority to apply the rules to other habeas cases.
Court need not consider the merits of this case because
petitioner explicitly waived his right to bring this
challenge in his plea agreement in the Criminal Case.
Criminal Case, Doc. 131. Where a guilty plea is entered
knowingly and voluntarily, appeal waivers are enforceable.
Solano v. United States, 812 F.3d 573, 577 (7th Cir.
2016) (citing United States v. Behrman, 235 F.3d
1049, 1051 (7th Cir. 2000)); United States v.
Sakellarion, 649 F.3d 634, 638 (7th Cir. 2011).
“The appeal waiver stands or falls with the plea
agreement.” Id. A subsequent change in the law
does not make an appeal waiver involuntary. United
States v. Vela, 740 F.3d 1150, 1151 (7th Cir. 2014).
does not claim that his plea or appeal and collateral attack
waivers were involuntary or invalid. In any event, a §
2241 petition is not the appropriate vehicle for raising this
argument. Petitioner's waiver and sentence have also
survived scrutiny in the context of his § 2255
proceeding and his appeal. See Malone v. United
States, No. 15-cv-1079-DRH (S.D. Ill. March 7, 2016),
Doc. 24; (Doc. 1, p. 4). For these reasons, the Court finds
that petitioner waived his right to bring this collateral
attack on his sentence, and this action must be dismissed.
HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is summarily
DISMISSED with prejudice for the reasons stated above.
Respondent TRUE is also DISMISSED with prejudice.
petitioner wishes to appeal this dismissal, he may file a
notice of appeal with this court within sixty 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
liable for a portion of the $505.00 appellate filing fee (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 proper
and timely motion filed pursuant to Federal ...