United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
G. Wilkerson United States Magistrate Judge.
October 5, 2018, Petitioner Michael Glover, also known as
Born Taleem Bey, filed his pro se Petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
(Doc. 1). Glover is currently incarcerated at USP-Atwater,
California, serving a 360-month sentence after being
convicted of multiple counts of unlawfully possessing a
firearm and possession with intent to distribute
heroin. Glover invokes Mathis v. United
States, ___ U.S. ___, 136 S.Ct. 2243 (2016), and
Sessions v. Dimaya, ___ U.S. ___, 138 S.Ct. 1204
(2018), to challenge sentence enhancements to two of the
offenses for which he was convicted. He argues that he did
not use, carry, or possess a firearm to commit a “crime
of violence” as defined by 18 U.S.C. §
924(c)(1)(A), which would nullify the 10-year mandatory
sentence he received for his conviction under 18 U.S.C.
§ 924(c)(1)(A)(iii). Glover's Petition also implies that
Mathis precludes the use of a prior Missouri
controlled substance conviction to enhance the sentence
imposed for his drug trafficking conviction. He seeks to be
resentenced without these enhancements.
has answered the Petition (Doc. 13), and Glover has replied
(Doc. 18); the matter is ripe for disposition. For the
reasons discussed below, Glover's Petition (Doc. 1) shall
Facts and Procedural History
February 27, 2013, a jury found Glover guilty of two counts
of being a felon in possession of a firearm,  one count of
possession with intent to distribute heroin,  and one count of
possessing a firearm in furtherance of a drug trafficking
crime. United States v. Glover, No.
12-cr-0243-JAR-1, Doc. 163 (E.D. Mo. Feb. 27, 2013). The
statutory sentencing range for Glover's first two firearm
convictions was 0-10 years imprisonment, 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), neither of which were
enhanced by any statutory or Guidelines mechanisms.
Glover's possession with intent to distribute heroin
conviction normally carried a mandatory minimum sentence of
ten years (120 months) imprisonment. 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A).
Glover's mandatory minimum sentence was increased to
twenty years (240 months) imprisonment pursuant to 21 U.S.C.
§§ 841(b)(1)(A) and 851 based on a 1996 Missouri
felony drug conviction. See Glover, No.
12-cr-0243-JAR-1 at Docs. 53, 104, 183; see also
(Doc. 14-1, pp. 8, 16). Glover's final firearm conviction
was also enhanced after the sentencing court found he had
discharged a firearm at police in relation to a drug
trafficking crime (namely, his crime of possession with
intent to distribute heroin). Id. at Docs. 183, 198.
This finding enhanced Glover's final firearm conviction
to carry a mandatory minimum sentence of ten years (120
months) imprisonment which must run consecutively to his term
of imprisonment for his other crimes. 18 U.S.C. §§
924(c)(1)(A)(iii) and 924(c)(1)(D)(ii).
Glover was sentenced to a total of 360 months imprisonment,
consisting of concurrent 120-month terms on Counts 1 and 4, a
concurrent 240-month term on Count 2, plus a consecutive 120
months for Count 3. Glover, No. 12-cr-0243-JAR-1,
Doc. 183 (E.D. Mo. June 5, 2013). Neither Glover nor his
counsel filed an objection to the Presentence Report
(“PSR”) prior to Glover's sentencing hearing,
and Glover specifically directed his counsel not to object to
the PSR or the sentencing court's findings during the
sentencing hearing. Id. at Doc. 198, pp. 3, 18- 20.
filed a direct appeal challenging his conviction, but not his
sentence-the Eighth Circuit upheld the conviction and
dismissed Glover's appeal. Id. at Doc. 206. In
June 2015, he filed a motion under 28 U.S.C. § 2255,
arguing that (1) he could not have been legally prosecuted
because he is not a United States citizen; (2) the United
States cannot prosecute him for crimes because it is not
“the interested party;” (3) his Judgment of
Conviction is void because it was not “verified;”
and (4) the United States had no standing to prosecute him
because it was not a “holder-in-due-course.”
Glover v. United States, No. 15-cv-1027-JAR, Doc. 6
(E.D. Mo. Aug. 21, 2015). Glover's petition was denied in
its entirety, and no certificate of appealability was
granted. Id. Glover subsequently filed a motion for
new trial, which was denied by the sentencing court and
affirmed by the Eighth Circuit on appeal. Glover,
No. 12-cr-0243-JAR-1, Docs. 214, 215, 216.
Asserted for Habeas Relief
Petition primarily attacks the sentence enhancement applied
to his conviction under 18 U.S.C. § 924(c)(1)(A)(iii)
for possessing a firearm in furtherance of a drug trafficking
crime. Contrary to the transcript of the sentencing hearing,
the text of the PSR, and the final judgment of conviction,
Glover insists that the sentence for this conviction was
enhanced due to the sentencing court finding that his other
two unlawful firearm possession convictions were
“crimes of violence” as defined by 18 U.S.C.
§ 924(c)(3)(B)'s residual clause. He argues that
Johnson v. United States, 576 U.S. ___, 135 S.Ct.
2551 (2015), and Sessions v. Dimaya, ___ U.S. ___,
138 S.Ct. 1204 (2018), both have held that similar statutory
language is unconstitutionally vague, and this clause cannot
legally serve as the basis for enhancing his sentence. He
further argues that the conduct underlying his conviction
(i.e., his unlawful possession of a firearm) is not
in itself a violent act, and therefore may not be considered
a “crime of violence” under the residual clause.
Finally, while not explicitly stated in his Petition, Glover
also appears to attack one or both of his sentence
enhancements pursuant to Mathis v. United States,
___ U.S. ___, 136 S.Ct. 2243 (2016), arguing that none of his
prior convictions are a categorical match for a “crime
of violence” as defined by § 924(c)(3)(B).
for Denial of Relief
counters that Glover's habeas claim fails to satisfy the
requirements of the savings clause in 28 U.S.C. §
2255(e). Respondent argues, pointing to the underlying
record, that neither of Glover's sentence enhancements
invoked, relied upon, or otherwise had anything to do with a
“crime of violence”-the enhancements were
explicitly and specifically made due to Glover's use of a
firearm in relation to a drug trafficking offense
(i.e., his possession with intent to distribute
heroin offense) which enhanced his sentence under 18 U.S.C.
§ 924(c)(1)(A)(iii), and a prior controlled substance
offense (i.e., his 1996 Missouri controlled
substance conviction) that enhanced his statutory minimum
sentence under 21 U.S.C. § 841(b)(1)(A). Further,
Respondent argues that Glover procedurally defaulted on his
present claim by failing to raise his challenge on direct
appeal, and that Glover waived any claim relating to whether
his prior Missouri conviction was properly considered a
“controlled substance offense.” Finally,
Respondent argues that even if Glover's habeas claim was
properly brought and adequately presented, it fails on the
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 ...