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Norman v. Werlich

United States District Court, S.D. Illinois

July 22, 2019

TRAVIS NORMAN, No. 06910-025, Petitioner,
T.G. WERLICH, Respondent.


          NANCY J. ROSENSTENGEL Chief U.S. District Judge.

         This matter is before the Court on Petitioner Norman's Motion to Reconsider Summary Dismissal of his Section 2241 Habeas Petition (Doc. 6). He seeks reconsideration of the Court's October 2018 Order dismissing his Petition upon threshold review pursuant to Rules 1(b) and 4 of the Rules Governing Section 2254 Cases in United States District Courts.

         Applicable Legal Standards

         Technically, a “motion to reconsider” does not exist under the Federal Rules of Civil Procedure. But such motions are routinely filed, and they generally are treated as motions to alter or amend an order or judgment under Rule 59(e) or motions for relief from judgment/order under Rule 60(b). See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994).

         Different standards and timetables govern Rule 59(e) and Rule 60(b) motions. Rule 59(e) permits a court to amend a judgment only if the movant demonstrates a manifest error of law or fact or presents newly discovered evidence that was not previously available. See, e.g., Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007); Harrington v. City of Chicago, 433 F.3d 542 (7th Cir. 2006) (citing Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000)). A Rule 59(e) motion must be filed within 28 days of the challenged order; this strict time limit cannot be extended. See Fed. R. Civ. P. 6(b)(2); 59(e).

         Rule 60(b) permits a court to relieve a party from an order or judgment based on such grounds as mistake, surprise or excusable neglect by the movant; fraud or misconduct by the opposing party; a judgment that is void or has been discharged; or newly discovered evidence that could not have been discovered within the 28-day deadline for filing a Rule 59(b) motion. However, the reasons offered by a movant for setting aside a judgment under Rule 60(b) must be something that could not have been employed to obtain a reversal by direct appeal. See, e.g., Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000); Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 915 (7th Cir. 1989) (“an appeal or motion for new trial, rather than a FRCP 60(b) motion, is the proper avenue to redress mistakes of law committed by the trial judge, as distinguished from clerical mistakes caused by inadvertence”); Swam v. United States, 327 F.2d 431, 433 (7th Cir.), cert. denied, 379 U.S. 852 (1964) (a belief that the Court was mistaken as a matter of law in dismissing the original petition does “not constitute the kind of mistake or inadvertence that comes within the ambit of rule 60(b).”). A motion under Rule 60(b)(1) asserting mistake, inadvertence, surprise or excusable neglect may be filed within one year after entry of judgment. Fed.R.Civ.P. 60(c)(1).


         Norman's motion was filed within 28 days of the entry of judgment, thus Rule 59(e) applies. Norman raises four claims of error as grounds for vacating the judgment: The Court failed to recognize or apply United States v. Smith, 877 F.3d 720 (7th Cir. 2017); the Court misapprehended his claim regarding how 720 ILCS 570/401 permits a conviction for solicitation of a controlled substance and is thereby overbroad; the Court should have ordered a response to his Petition rather than dismiss it on initial review under Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013); and the dismissal of his case contradicts this Court's grant of habeas relief in Khoury v. United States, No. 16-cv-1085-DRH, Doc. 16 (S.D. Ill. Jan. 26, 2017). (Doc. 6, pp. 1-2).

         Norman argues that the Court misunderstood the scope of his challenge to the Illinois Controlled Substance Act, 720 ILCS 570/401, as a predicate “controlled substance offense” within the meaning of the United States Sentencing Guidelines (“USSG”) § 4B1.2(b). He claims that under Illinois law, a defendant may be convicted of a violation of Section 401 for “solicitation” of delivery of a controlled substance, and argues that United States v. Redden, 875 F.3d 374 (7th Cir. 2017), did not resolve that question. (Doc. 6, pp. 4-7). The Court dismissed the Petition based in part on Redden, which held that a conviction for delivery of a controlled substance under 720 ILCS 570/401 qualified as a “controlled substance offense” for the purposes of the career-offender enhancement under USSG § 4B1.1. Redden, 875 F.3d at 374-75. Redden specifically addressed Norman's argument that the Illinois statute criminalized an “offer” of a controlled substance, and found it did not, distinguishing United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and United States v. Madkins, 866 F.3d 1136, 1145 (10th Cir. 2017).

         To the extent that the Petition raised a distinct argument that the Illinois statute criminalizes “solicitation, ” his analysis is not persuasive. He is correct that Smith, 877 F.3d at 722, states: “That a given decision resolves one legal argument bearing on a subject does not mean that it has resolved all possible legal arguments bearing on that subject.” As such, Redden may not have resolved every challenge to the use of a conviction under 720 ILCS 570/401 as a career-offender predicate offense. Norman admits, however, that Section 401 “does not list ‘solicitation' as an alternative method of accomplishing delivery. Nor is solicitation included in the express statutory definitions of 720 ILCS 570/102(h).” (Doc. 6, p. 7). This defeats his own argument, because Mathis v. United States, 136 S.Ct. 2243 (2016), under which Norman claims a right to relief, directs that courts compare the language and definitions found in the state statute of conviction with its federal (or generic) equivalent, to determine whether the state law is overbroad.

         Further, Norman's example (Doc. 6, pp. 5-6; Doc. 1, pp. 11-12; Doc. 1-1, pp. 5-8) of Jerry Strahan's conviction for “solicitation of unlawful delivery of a controlled substance” does not constitute a precedent that would contradict Redden, nor does it prove that solicitation is a component of the offense described in 720 ILCS 570/401. Instead, solicitation is a distinct offense, and Strahan's case is an example of the general principle that a defendant may be charged with and convicted of an inchoate offense (attempt, solicitation, conspiracy) where the criminal conduct did not result in completion of the principal offense (for example, actual delivery of a controlled substance). See 720 ILCS 5/8-5 (prohibiting conviction for both inchoate offense and principal offense). Such a conviction does not make the statute of the principal offense overbroad as contemplated in Mathis.

         Even if the Court were to accept Norman's theory that Section 401 is overbroad and cannot properly support a USSG career-offender enhancement, Hawkins still dictates that habeas corpus relief is unavailable in his case. As explained in the dismissal order, Norman's 240-month sentence was in fact lower than the advisory Guideline range of 262-327 months, and was well within the statutory maximum of life for his cocaine offense. Under Hawkins, even if the sentencing court erred in its calculation of the Guideline range for Norman's offense, no miscarriage of justice occurred so long as the sentence did not exceed the statutory maximum. The fact that Norman is still under a 240-month sentence for his other conviction (assault) underscores the conclusion that there was no miscarriage of justice as to the sentence he challenges.

         Norman's contention that the Court was wrong to dismiss his case before ordering a response is without merit. (Doc. 6, p. 9). Rule 4 directs that the Court “must dismiss the petition” where it “plainly appears . . . that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Norman is correct that, at a time when the case law interpreting Mathis was less developed, the Court did order a response in some cases raising similar arguments. That fact does not, however, entitle Norman or any other litigant to a response from the Government. The Court has since dismissed a number of other cases pursuant to Hawkins, both at the threshold review stage and after briefing by the respondents.

         Norman attempts to distinguish Hawkins, reiterating and expanding upon his argument that he has a due process right to be sentenced based on accurate information. (Doc. 6, pp. 11-16; Doc. 1, pp. 27-28). Unfortunately, however, his reliance on United States v. Tucker, 404 U.S. 443, 447 (1972), and United States v. Miller, 900 F.3d 509 (7th Cir. 2018), is misplaced. Tucker involved a situation where the habeas petitioner's prior convictions, in light of a subsequent Supreme Court decision, [1] were no longer valid to be considered in his sentencing because his constitutional right to counsel was violated in the earlier proceedings. The Supreme Court described the trial court's mistake as relying on “misinformation of constitutional magnitude.” Tucker, 40 ...

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