United States District Court, S.D. Illinois
WESLY COOPER, No. 12099-089, Petitioner,
WARDEN, FCI-GREENVILLE, Respondent.
MEMORANDUM AND ORDE
HERNDON, DISTRICT JUDGE.
Wesly Cooper, 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.
Specifically, he seeks an order vacating his firearm
conviction under 18 U.S.C. § 924(c). He invokes
Mathis v. United States, ___ U.S. ___, 136 S.Ct.
2243, 2250 (2016), and Sessions v. Dimaya, ___ U.S.
___, 138 S.Ct. 1204 (2018), to argue that Hobbs Act Robbery
is not a crime of violence within the meaning of §
924(c). (Doc. 1, p. 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.
August 30, 2013, Cooper pled guilty to 3 offenses in the
Eastern District of Wisconsin. United States v.
Cooper, No. 13-cr-17. (Doc. 132 in that case). Several
other counts were dismissed by the Government. On December 5,
2013, Cooper was sentenced to concurrent terms of 60 months
on 2 counts of Hobbs Act robbery (counts 1 and 3), in
violation of 18 U.S.C. § 1951, and a consecutive
sentence of 84 months (7 years) for brandishing a firearm in
connection to a crime of violence (the robberies) (count 16),
in violation of 18 U.S.C. § 924(c). (Doc. 1, pp. 1-2;
Doc. 191 in criminal case).
Plea Agreement, Cooper and the Government specifically agreed
to a recommended sentence of 7 years for the § 924(c)
firearm offense, which would be imposed consecutively to the
sentences for the robbery counts. (Doc. 132, pp. 9-10, in
criminal case). The Plea Agreement further specified an
applicable offense level of 30 for the robberies, subject to
the Government recommending a 2-level to 3-level decrease if
Cooper conducted himself consistent with his acceptance of
responsibility. Id. The guideline range in
§3D1.4(a) of the United States Sentencing Guideline
Manual would apply to the robbery counts. Id.
Elsewhere in the Plea Agreement, Cooper waived his right to
bring a post-conviction challenge to his conviction or
sentence, “including but not limited to a motion
pursuant to 28 U.S.C. § 2255.” (Doc. 1, p. 14).
The waiver excluded a challenge based on “(1) any
punishment in excess of the statutory maximum, [and] (2) the
sentencing court's reliance on any constitutionally
impermissible factor[.]” Id.
the above waiver, Cooper mounted a § 2255 challenge in
2016. Cooper v. United States, No. 16-cv-557 (E.D.
Wisc.). He argued that Johnson v. United States, 135
S.Ct. 2551 (2015) (holding that the “residual
clause” in 18 U.S.C. § 924(e)(2)(B)(ii) of the
Armed Career Criminal Act - defining a “violent
felony” as one that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another” - was unconstitutionally vague), invalidated
his § 924(c) conviction for brandishing a firearm during
or in relation to a crime of violence, because Hobbs Act
robbery is not a “crime of violence” as defined
in § 924(c). (Doc. 6 in No. 16-cv-557 (E.D. Wisc.).
20, 2016, the sentencing court rejected that premise and
dismissed the § 2255 motion, finding that
Johnson's invalidation of the “residual
clause” language did not affect Cooper's
conviction. Hobbs Act robbery is defined as “‘the
unlawful taking or obtaining of personal property from'
another ‘against his will, by means of actual or
threatened force, or violence, or fear of injury, immediate
or future, to his person or property.'” (Doc. 6, p.
2, in No. 16-cv-557 (E.D. Wisc.). This definition, the court
reasoned, fits within the “elements clause” of
§ 924(c)(3)(A), which defines a “crime of
violence” as “an offense that ‘has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.'”
(Doc. 6, p. 2, in No. 16-cv-557 (E.D. Wisc.). Thus, Hobbs Act
robbery is properly treated as a crime of violence under
§ 924(c)(3)(A), and that conviction was unaffected by
the Johnson decision. The court did not address the
Government's argument that Cooper had waived his right to
bring a § 2255 motion. (Doc. 6, p. 3, n.2, in No.
filed the instant Petition on June 4, 2018. Echoing the
argument raised in his § 2255 motion, he argues that the
Hobbs Act convictions, under Mathis and
Dimaya, do not qualify as crimes of violence to
support a § 924(c) conviction. According to Cooper,
Hobbs Act robbery is merely common-law robbery with an
interstate commerce element, and common-law robbery can be
committed without using any force at all. (Doc. 1, pp. 1-3,
5-9). He urges this Court not to follow the ruling in
United States v. Anglin, 846 F.3d 954 (7th Cir.
2017), because it “did not consider the rules of
statutory construction” in holding that the Hobbs Act
qualified as a crime of violence. (Doc. 1, p. 1). He reasons
that because Sessions v. Dimaya, 138 S.Ct. 1204
(2018), found that the residual clause in 18 U.S.C. §
16(b) was unconstitutionally vague, the similarly-worded
residual clause found at § 924(c)(3)(B) is also invalid.
(Doc. 1, p. 4).
asks this Court to vacate his § 924(c) conviction. He
does not challenge the Hobbs Act convictions or sentences.
general matter, “28 U.S.C. § 2241 and 28 U.S.C.
§ 2255 provide federal prisoners with distinct forms of
collateral relief. Section 2255 applies to challenges to the
validity of convictions and sentences, whereas § 2241
applies to challenges to the fact or duration of
confinement.” Hill v. Werlinger, 695 F.3d 644,
645 (7th Cir. 2012) (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). Here,
Cooper is attacking his conviction and sentence, which points
to § 2255 as the proper avenue for relief.
very limited circumstances, a prisoner may employ § 2241
to challenge his federal conviction or sentence. 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.” 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). The
fact that Cooper may be barred from bringing a
second/successive § 2255 petition is not, in itself,
sufficient to render it an inadequate remedy. 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). Instead, a petitioner under § 2241
must demonstrate the inability of a § 2255 motion to
cure the defect in the conviction. ...