United States District Court, C.D. Illinois
ORDER AND OPINION
E. SHADID CHIEF UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Black's Petition (Doc. 1)
for Writ of habeas corpus under 28 U.S.C. § 2241. For
the reasons set forth below, Petitioner Black's Petition
(Doc. 1) is DENIED.
August 6, 2009, Wayner Black was charged in a two-count
Indictment with bank robbery by use of a dangerous weapon, in
violation of 18 U.S.C. § 2113(a) and (d) (Count 1) and
brandishing a firearm during and in connection with a crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2).
Black pleaded guilty to Count 1 pursuant to a plea agreement
and the United States agreed to dismiss Count 2. The
probation officer prepared a presentence report
(“PSR”) which designated Black as a Career
Offender based on the instant offense for a crime of violence
and three prior controlled substance convictions in Cook
County, Illinois. On March 23, 2010, Black was sentenced in
the United States District Court for the Western District of
Wisconsin to 262 months of imprisonment. United States v.
Black, No. 3:09-cr-00108-bbc-1 (W.D. Wis.),
aff'd, 636 F.3d 893 (7th Cir. 2011). On appeal,
the Seventh Circuit found that the district court properly
applied the categorical approach and properly determined that
Black was a Career Offender. 636 F.3d at 899.
now brings this Petition for Writ of habeas corpus under 28
U.S.C. § 2241. Doc. 1. Therein, he argues that his prior
convictions no longer qualify as predicate offenses under the
Career Offender guideline, U.S.S.G. § 4B1.1, in light of
United States v. Hinkle, No. 15-10067 (5th Cir.
2016) and Mathis v. United States, 136 S.Ct. 2243
(2016). The United States filed a Motion for Leave to
Bifurcate and Partial Response, arguing that the relief Black
seeks is not available in a collateral attack under §
2241. Doc. 7. Petitioner Black then filed a Reply. Doc. 8.
This Order follows.
federal prisoners who seek to collaterally attack their
conviction or sentence must proceed by way of motion under 28
U.S.C. § 2255, the so-called “federal
prisoner's substitute for habeas corpus.”
Camacho v. English, 16-3509, 2017 WL 4330368, at *1
(7th Cir. Aug. 22, 2017) (quoting Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012)). The exception to this rule is
found in § 2255 itself: a federal prisoner may petition
under § 2241 if the remedy under § 2255 “is
inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). Under the
“escape hatch” of § 2255(e), “[a]
federal prisoner should be permitted to seek habeas corpus
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). Thus, the Seventh Circuit has held that
“alternative relief under § 2241 is available only
in limited circumstances: specifically, only upon showing
that (1) the claim relies on a new statutory interpretation
case; (2) the petitioner could not have invoked the decision
in his first § 2255 motion and the decision
applies retroactively; and (3) there has been a fundamental
defect in the proceedings that is fairly characterized as a
miscarriage of justice.” Montana v. Cross, 829
F.3d 775, 779 (7th Cir. 2016), cert. denied sub nom.
Montana v. Werlich, 137 S.Ct. 1813 (2017).
decisions from the Seventh Circuit, Hawkins v. United
States, 706 F.3d 820 (7th Cir. 2013) (Hawkins
I), and Hawkins v. United States, 724 F.3d 915
(7th Cir. 2013) (Hawkins II), preclude relief for
Petitioner Black because together they hold a petitioner may
not seek on collateral review to revisit the district
court's calculation of his advisory guidelines range. The
Court is bound by the Hawkins decisions. Given the
interest in finality of criminal proceedings, in Hawkins
I the Seventh Circuit held an erroneous interpretation
of the guidelines should not be corrigible in a
postconviction proceeding so long as the sentence actually
imposed was not greater than the statutory maximum.
Hawkins I, 706 F.3d at 823-25. It specifically
distinguished the advisory guidelines from the mandatory
system in place at the time of Narvaez v. United
States, 674 F.3d 621 (7th Cir. 2011) (holding
Narvaez's improper sentence under the mandatory
guidelines constituted a miscarriage of justice).
moved for rehearing in light of Peugh v. United
States, 133 S.Ct. 2072 (2013), in which the Supreme
Court held the Guidelines were subject to constitutional
challenges “notwithstanding the fact that sentencing
courts possess discretion to deviate from the recommended
sentencing range.” Peugh, 133 S.Ct. at 2082.
The Seventh Circuit denied rehearing because Peugh
was a constitutional case whereas Hawkins I involved
a miscalculated guidelines range, the legal standard in
Peugh was lower than for postconviction relief, and
Peugh's retroactivity was uncertain. Hawkins
II, 724 F.3d at 916-18 (“[I]t doesn't follow
that postconviction relief is proper just because the judge,
though he could lawfully have imposed the sentence that he
did impose, might have imposed a lighter sentence had he
calculated the applicable guidelines sentencing range
correctly.”). Because Black's only challenge in his
Petition is to the district court's calculation of his
advisory guideline range (i.e., the Career Offender
designation), his claim is not cognizable on collateral
review and must therefore be denied.
reasons set forth above, Petitioner Black's Petition
(Doc. 1) for Writ of habeas corpus under 28 U.S.C. §
2241 is DENIED.
matter is ...