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Davis v. Werlich

United States District Court, S.D. Illinois

August 9, 2019

JOSHUA L. DAVIS, #39224-424, Petitioner,
T. G. WERLICH, Respondent.



         Petitioner Joshua L. Davis, a federal prisoner incarcerated at FCI-Greenville, filed a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on April 12, 2017. (Doc. 1). He relies on Mathis v. United States, __ U.S. __, 136 S.Ct. 2243 (2016), and related decisions to challenge his federal sentence, which was imposed after the court applied the career offender provision of Section 4B1.1 of the United States Sentencing Guidelines (the “Guidelines”) to calculate his applicable Guideline range. Davis argues that after Mathis, his two prior Illinois state convictions-one for delivery of a controlled substance, and the other for aggravated discharge of a firearm-no longer qualify as the basis for a career-offender enhancement.

         After Respondent's initial Response (Doc. 10) and Davis's Reply (Doc. 16), Respondent supplemented his Response (Doc. 17). Davis replied (Doc. 21) and filed three more supplements of his own (Docs. 25, 29, and 37). Respondent filed another Response, (Doc. 30), to which Davis replied, (Doc. 33), and most recently filed a Motion to Dismiss (Doc. 38), to which Davis responded (Doc. 40).

         Relevant Facts and Procedural History

         In September 2009, Davis pled guilty to distributing more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1), and possessing firearms and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). (Doc. 1, pp. 4-5; Doc. 10-2, p. 2); United States v. Davis, No. 08-cr-50026, Doc. 57 (N.D. Ill. Sept. 11, 2009) (“criminal case”). Davis had previously been convicted in Whiteside County, Illinois, of aggravated discharge of a firearm (No. 94-CF-75) and delivery of a controlled substance (No. 98-CF-158). Accordingly, the court considered him to be a career offender pursuant to Section 4B1.1 of the Guidelines. Davis, No. 08-cr-50026, Doc. 81 at pp. 4-7 (April 6, 2010).

         The advisory sentencing range under the Guidelines was 262-327 months, and at the time of his conviction and sentencing, Davis's statutory sentencing range was 10 years (120 months) to life imprisonment. (Doc. 57, pp. 9-11 in criminal case); (Doc. 11-1, p. 1); 21 U.S.C. § 841(b)(1)(A)(iii) (2009). Notably, even under the current United States Code, possession with intent to distribute or dispense 28 grams or more of cocaine base has a statutory maximum penalty of forty years (480 months) imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii) (2018). On December 14, 2009, Davis was sentenced to a below-Guidelines term of 240 months imprisonment on Count 1, to run concurrently to a 120-month sentence on Count 6. Davis, No. 08-cr-50026 at Doc. 69.

         On January 18, 2011, the Seventh Circuit dismissed Davis's direct appeal after his counsel filed an Anders brief. (Doc. 94 in criminal case). In 2012, Davis filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582, which was unsuccessful. (Docs. 108, 109 in criminal case).

         Subsequently, Davis made several attempts to challenge his sentence pursuant to 28 U.S.C. § 2255. His initial Section 2255 motion was denied as untimely. United States v. Davis, No. 13-cv-50360, Doc. 6 (N.D. Ill. Mar. 18, 2014). In the order denying relief, the court discussed Davis's challenge to his career offender classification, finding that even if the Section 2255 challenge had been timely, it would have failed on the merits. Id. at pp. 7-10.

         In 2016, Davis filed three applications with the Seventh Circuit, seeking permission to file a second or successive Section 2255 motion. Each was unsuccessful. Davis first attempted to challenge his career-offender sentence under Johnson v. United States, 135 S.Ct. 2551 (2015), in Nos. 16-1726 and 16-3204. The Seventh Circuit responded that Johnson was inapplicable because Davis was not sentenced under the residual clause of the Armed Career Criminal Act. Davis v. United States, No. 16-1726, Doc. 6 (7th Cir. April 28, 2016). Further, Davis's conviction for aggravated discharge of a firearm was properly used as a career-offender-qualifying conviction, because it included as an element the use, threatened use, or attempted use of force. Id. (citing United States v. Womack, 732 F.3d 745, 748-49 (7th Cir. 2013)). Davis also sought to challenge his sentence under Mathis v. United States, 136 S.Ct. 2243 (2016), in Nos. 16-3204 and 16-3745. In denying permission for a second/successive Section 2255 petition in those cases, the Seventh Circuit noted that Mathis did not meet the criteria to form the basis for a sentence challenge in a Section 2255 proceeding. Davis v. United States, No. 16-3204, Doc. 2 (7th Cir. Sept. 12, 2016).

         Following the Seventh Circuit's rejection of the above applications, Davis filed the instant action on April 12, 2017.

         Grounds for Habeas Relief

         Davis's primary argument is that the Illinois statutes under which he was convicted in his prior drug and firearm offenses are “divisible, ” and no longer qualify as predicate offenses for a career offender enhancement under the Guidelines when analyzed using the “modified categorical approach” as explained in United States v. Descamps, 133 S.Ct. 2276, 2281 (2013). (Doc. 1, pp. 1, 6-7). He invokes Mathis, 136 S.Ct. 2243, and points to United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), as an example. In Hinkle, the appellate court found that a Texas conviction for delivery of heroin did not qualify as a “controlled substance offense” to trigger an enhanced career-offender sentence under the Guidelines, because the state statute criminalized some conduct that fell outside the Guidelines' definition of a predicate controlled substance offense. Davis argues that his conviction for possession of a controlled substance with intent to deliver, under 720 ILCS 570/401(c)(2), similarly should not have been used to enhance his sentence. (Doc. 1, pp. 6-9). He claims the statute includes the element of simple possession, which would not trigger the enhanced sentencing scheme, in addition to delivery of a controlled substance, which is a qualifying offense.

         Additionally, Davis argues that his claim is properly brought under Section 2255(e)'s savings clause and is not barred by Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), supplemented on denial of rehearing, 724 F.3d 915 (7th Cir. 2013), because, unlike the petitioner in Hawkins, his claim incorporates the argument that he has a constitutional right to be sentenced using accurate information. (See Doc. 25, pp. 28-29). Because his career offender designation was based on inaccurate information (i.e., that he had two predicate offenses to be deemed a career offender under the Guidelines), the fact that his Guidelines range was calculated using this designation means that a “fundamental miscarriage of justice” occurred during his sentencing. (Doc. 25, p. 29).

         Based on these arguments, Davis requests the Court to vacate, set aside, or ...

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