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Cramer v. Werlich

United States District Court, S.D. Illinois

August 15, 2019

TROY CRAMER, #16783-047, Petitioner,
v.
T. G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          STACI M. YANDLE UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         Cramer 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).

         Respondent 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).

         This matter is now ripe for resolution. For the reasons discussed below, Cramer's § 2241 Petition (Doc. 1) will be DENIED.

         Procedural History and Relevant Facts

         On May 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.[1] 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).[2] 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.

         Cramer 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.[3] 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).

         Applicable Legal Standards

          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).

         Under 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).

         Analysis

          In 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.

         Some 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 ยง 2255 purposes given the advisory ...


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