United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
Troy Cramer, an inmate in the Bureau of Prisons, filed a
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241 on February 12, 2018. (Doc. 1). Cramer was sentenced to
262 months imprisonment in 2013 after pleading guilty to
conspiracy to distribute 500 grams or more of a mixture
containing methamphetamine. United States v. Troy
Cramer, No. 13-cr-3011-JMG-CRZ, Doc. 36 (D. Neb. Aug.
19, 2013). His Guidelines range was enhanced after he was
found to be a career offender under U.S.S.G. § 4B1.1,
based on a prior federal controlled substance conviction and
a Nebraska state conviction for terroristic threats.
Id. at Doc. 78, p. 2.
now invokes Mathis v. United States, - U.S. -, 136
S.Ct. 2243 (2016) to challenge his designation as a career
offender based on the Nebraska conviction and contends he is
entitled to be resentenced without that designation.
Specifically, Cramer argues that this prior conviction
pursuant to Neb. Rev. Stat. § 28-311.01 (1986) does not
qualify as a “crime of violence” under the
Guidelines because it does not have as an element the use,
attempted use, or threatened use of physical force again the
person of another. (Doc. 1, pp. 4-7).
opposes issuance of the Writ on multiple grounds: First, that
Cramer waived his collateral challenge rights as part of his
plea agreement, which forecloses his Petition (Doc. 8, pp.
5-6); Second, that Cramer's sentence cannot be deemed a
“miscarriage of justice” under §
2255(e)'s savings clause, as it fell within the statutory
maximum penalty for his crime of conviction regardless of his
career offender designation (Id. at pp. 6-9); and
Finally, that Cramer's Nebraska terroristic threats
conviction meets the Sentencing Guidelines' definition of
“crime of violence” because the threatened use of
physical force is an essential element of the statute-thus
his claim fails on the merits. (Id. at pp. 8-10).
Cramer filed a reply (Doc. 10) and filed a supplemental
pleading with additional authority (Doc. 11).
matter is now ripe for resolution. For the reasons discussed
below, Cramer's § 2241 Petition (Doc. 1) will be
History and Relevant Facts
22, 2013, Cramer pleaded guilty to one Count of conspiracy to
distribute 500 grams or more of a mixture containing
methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A)(viii). United States v. Troy
Cramer, No. 13-cr-3011-JMG-CRZ, Doc. 22 (D. Neb. May 22,
2013). Cramer entered into a formal Plea Agreement in which
he agreed that he “knowingly and expressly waive[d] any
and all rights to contest [his] . . . sentence in any
post-conviction proceedings, including any proceedings under
28 U.S.C. § 2255 . . . .” Id. at Doc. 25,
pp. 6-7. While neither party has provided the
Presentence Report (“PSR”) to the Court, there is
no dispute that Cramer was determined to be a career offender
under the Guidelines by the sentencing court, in part due to
his prior Nebraska conviction for terroristic threats under
Neb. Rev. Stat. § 28-311.01 (1986). (Doc. 1, pp. 2, 4-7;
Doc. 2, p. 3). Cramer's statutory sentencing range
included a minimum of ten years (120 months) imprisonment and
a maximum of life imprisonment. 21 U.S.C. §
841(b)(1)(A)(viii). After the career offender designation was
applied, Cramer was sentenced at the low end of the
Guidelines range to 262 months imprisonment on August 19,
2013. Cramer, No. 13-cr-3011-JMG-CRZ, Doc. 36 (D.
Neb. Aug. 19, 2013); see also id. at Doc. 78.
did not file a direct appeal. He did, however, file a motion
under 28 U.S.C. § 2255 in the District of Nebraska. He
argued, as he does here, that his prior conviction for
terroristic threats under Nebraska law should not have been
used to enhance his sentence under the Guidelines.
Id. at Doc. 66. His argument was premised on
Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551
(2015) instead of Mathis, and he argued that his
career offender designation was made pursuant to the
Guidelines' “residual clause” instead of its
“elements clause.” Id.; compare
U.S.S.G. § 4B1.2(a)(1) with § 4B1.2(a)(2).
The § 2255 motion was denied after citation to
Cramer's plea waiver as well as a discussion of the
merits of his motion. Id. at Doc. 78. The Eighth
Circuit Court of Appeals affirmed the denial, Cramer v.
United States, 700 Fed.Appx. 562 (8th Cir. 2017) (per
curiam) and denied Cramer's Petition for Rehearing en
banc. United States v. Cramer, No.
13-cr-3011-JMG-CRZ, Doc. 88 (D. Neb. Dec. 19, 2017).
Generally, 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 instead limited to
challenges regarding the execution of a sentence. See
Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998). Aside from the direct appeal process, a § 2255
motion is ordinarily the “exclusive means for a federal
prisoner to attack his conviction.” Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003). A prisoner is
generally limited to one challenge of his conviction
and sentence under § 2255. A prisoner may not file a
“second or successive” § 2255 motion unless
a panel of the appropriate court of appeals certifies that
such motion either 1) contains newly discovered evidence
“sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty of the offense, ” or 2) invokes “a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h).
very limited circumstances, however, it is possible for a
prisoner to challenge his federal conviction or sentence
under § 2241. 28 U.S.C. § 2255(e) contains a
“savings clause” under which a federal prisoner
can file a § 2241 petition when the remedy under §
2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e). See
United States v. Prevatte, 300 F.3d 792, 798-99 (7th
Cir. 2002). The Seventh Circuit construed the savings clause
in In re Davenport, 147 F.3d 605, 611 (7th Cir.
1998): “A procedure for postconviction relief can be
fairly termed inadequate when it is so configured as to deny
a convicted defendant any opportunity for judicial
rectification of so fundamental a defect in his conviction as
having been imprisoned for a nonexistent offense.”
Following Davenport, a petitioner must meet three
conditions to trigger the savings clause. First, he must show
that he relies on a new statutory interpretation case rather
than a constitutional case. Secondly, he must show that he
relies on a decision that he could not have invoked in his
first § 2255 motion and that case must apply
retroactively. Lastly, he must demonstrate that there has
been a “fundamental defect” in his conviction or
sentence that is grave enough to be deemed a miscarriage of
justice. Brown v. Caraway, 719 F.3d 583, 586 (7th
Cir. 2013). See also Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012). In other words, something more than a
lack of success with a § 2255 motion must exist before
the savings clause is satisfied.” See Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
light of Mathis, Cramer argues he was improperly
designated as a career offender because his prior Nebraska
conviction does not have as an element the use, attempted
use, or threatened use of physical force against the person
of another, which is necessary to be considered a
“crime of violence” under the Guidelines'
elements clause. (Doc. 1, pp. 4-7); U.S.S.G. §
4B1.2(a)(1). Before reaching the merits of this argument, the
Court must first consider whether Cramer's claim can be
brought within the narrow scope of § 2255's savings
clause. The Court agrees with Respondent that Cramer cannot
demonstrate the existence of a fundamental defect in his
conviction or sentence that is grave enough to be deemed a
miscarriage of justice, thus he cannot satisfy the
requirements of § 2255(e)'s savings clause to bring
his Mathis claim in a § 2241 petition.
errors can be raised on direct appeal but not in a collateral
attack by a § 2255 motion or a § 2241 petition. A
claim that a defendant's Guidelines sentencing range was
erroneously calculated is one such claim. Hawkins v.
United States, 706 F.3d 820 (7th Cir. 2013),
supplemented on denial of rehearing, 724 F.3d 915
(7th Cir. 2013); see also United States v. Coleman,
763 F.3d 706, 708-09 (7th Cir. 2014) (“[W]e held in
Hawkins that the error in calculating the Guidelines
range did not constitute a miscarriage of justice for §
2255 purposes given the advisory ...