United States District Court, S.D. Illinois
FREDERICK NEELY, No. 10958-029, Petitioner,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
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), and United States
v. Hinkle, 832 F.3d 569 (5th Cir. 2016), he should not
have been subject to the career-offender enhancement under
the United States Sentencing Guidelines (“USSG”)
based on his 2 previous Iowa drug-related convictions. (Doc.
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.
December 22, 2009, in the Northern District of Iowa,
Petitioner pled guilty to conspiring to possess with intent
to distribute 50 grams or more of crack cocaine (21 U.S.C.
§ § 846 and 841(a)(1)). (Doc. 1, p. 2); United
States v. Neely, No. 09-cr-77-LRR (N.D. Ia)
(“Criminal Case”). Plaintiff was subject to the
penalties prescribed under §841(b)(1), which in his case
carried a statutory maximum penalty of life imprisonment.
See Criminal Case, Doc. 29 p. 1. According to the
Petition, he was sentenced to 360 months, under the career
offender enhancement found in the United States Sentencing
Guidelines (“USSG”), § 4B1.1 and §
4B1.2(b), because he had 2 prior state felony convictions for
controlled substance offenses. (Doc. 1, pp. 2-3). See
also Criminal Case, Doc. 29, p. 5; Doc. 93, p. 3; Doc.
39, p. 3; Doc. 85, p.3).
predicate offenses were both state law convictions for
possession with intent to deliver a controlled substance
(Case FECR068027 (2006) and FECR0078201(2008)), in violation
of IA ST § 204.401 (now IA ST § 124.401). (Doc.
1-1, p. 2). Petitioner argues that in light of the decision
in Mathis v. United States, 136 S.Ct. 2243 (U.S.
2016) and related authority, the Iowa statute is broader than
the conduct defined in the federal sentencing guidelines at
Standard Applicable to § 2241
petitions for writ of habeas corpus under 28 U.S.C. §
2241 may not be used to raise claims of legal error in
conviction or sentencing, but are limited to challenges
regarding the execution of a sentence. See, Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998).
prisoner who has been convicted in federal court is generally
limited to challenging his conviction and sentence by
bringing a motion pursuant to 28 U.S.C. § 2255 in the
court which sentenced him. A motion under § 2255 is
ordinarily the “exclusive means for a federal prisoner
to attack his conviction.” Kramer v. Olson,
347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is
generally limited to bringing only one motion under §
2255. A prisoner may not file a “second or
successive” motion unless a panel of the appropriate
court of appeals certifies that such motion contains either
1) newly discovered evidence “sufficient to establish
by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense,
” or 2) “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C.
it is possible, under very limited circumstances, for a
prisoner to challenge his federal conviction or sentence
under § 2241. 28 U.S.C. § 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.” The Seventh Circuit
construed the savings clause in In re
Davenport, 147 F.3d 605, 611 (7th Cir. 1998): “A
procedure for postconviction relief can be fairly termed
inadequate when it is so configured as to deny a convicted
defendant any opportunity for judicial rectification of so
fundamental a defect in his conviction as having been
imprisoned for a nonexistent offense.”
Seventh Circuit has explained that, in order to fit within
the savings clause following Davenport, a petitioner
must meet three conditions. First, he must show that he
relies on a new statutory interpretation case rather than a
constitutional case. Secondly, 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. Lastly,
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. Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See
also, Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012).
Court need not consider the merits of Petitioner's
argument because he cannot bring a Mathis claim in a
§ 2241 petition based on an allegedly erroneous career
are some claims that can be raised on direct appeal but not
in a collateral attack such as a § 2255 motion or a
§ 2241 petition. A claim that a defendant was
erroneously treated as a career offender under the advisory
Sentencing Guidelines is one such claim. Hawkins v.
United States, 706 F.3d 820 (7th Cir. 2013),
supplemented on denial of rehearing, 724 F.3d 915 (7th Cir.
2013). See also, United States v. Coleman, 763 F.3d
706, 708-09 (7th Cir. 2014) (“[W]e held in
Hawkins that the error in calculating the Guidelines
range did not constitute a miscarriage of justice for §
2255 purposes given the advisory nature of the Guidelines and
the district court's determination that the sentence was
appropriate and that it did not exceed the statutory
maximum.”). The Seventh Circuit recently reiterated
that the Sentencing Guidelines have been advisory and not
mandatory ever since the Supreme Court decided United
States v. Booker, 125 S.Ct. 738 (2005). Perry v.