Sullivan v. Kallis

          ORDER AND OPINION

          SARA DARROW, CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner Randolph Sullivan's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1). Also before the Court is Respondent's Motion to Bifurcate his Response (Doc. 8). For the reasons stated herein, Respondent's Motion (Doc. 8) is GRANTED to the extent that the Court allows the initial partial response. However, the Court finds Respondent's arguments are not dispositive of the case and, therefore, further briefing is ordered.

         I. BACKGROUND

         In 2010, after a jury trial in the United States District Court for the Northern District of Illinois, Sullivan was convicted of: possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (Count 1); possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count 2); and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 3). See United States v. Sullivan, Case No. 09-CR-50024 (N.D. Ill.); United States v. Sullivan, 457 Fed.Appx. 563, 564 (7th Cir. 2011).

         The United States Probation Office prepared a Presentence Investigation Report (“PSR”) in anticipation of Sullivan's sentencing. See PSR, Resp. App. (Doc. 10). The PSR found that Sullivan qualified as an Armed Career Criminal under 18 U.S.C. § 924(e) because he had at least three prior convictions violent felonies, including: (1) a 1985 Illinois attempted murder conviction in the Circuit Court of Winnebago County, Illinois, Case No. 85 CF 156; (2) a 2005 Illinois aggravated battery conviction in the Circuit Court of Winnebago County, Illinois, Case No. 04 CF 2916; and (3) a 2002 Illinois non-residential burglary in the Circuit Court of Stephenson County, Illinois, Case No. 02 CF 121. See PSR, Resp. App. at 62-63 (Doc. 10).

         Sullivan was subject to a statutory maximum sentence on Count 1 of 20 years' imprisonment. See 21 U.S.C. § 841(a)(1). On Count 3, Sullivan was subject to a statutory minimum term of imprisonment of 5 years to a maximum term of life imprisonment, to be served consecutive to any other terms of imprisonment. See 18 U.S.C. § 924(c)(1)(A)(i). The PSR also concluded that Sullivan qualified as a Career Offender under United States Sentencing Guideline § 4B1.1 due his previous convictions. Accordingly, Sullivan's advisory guideline range was 360 months to life imprisonment on Counts 1 and 2, and 60 months' imprisonment on Count 3, to be served consecutively. See PSR, Resp. App. at 97 (Doc. 10).

         The district court adopted the PSR's findings and sentenced Sullivan to 400 months' imprisonment, consisting of 240 months' imprisonment on Count 1 and 340 months' imprisonment on Count 2 to be served concurrently, and 60 months' imprisonment on Count 3 to be served consecutively. See Judgment, Resp. App. at 4 (Doc. 8-2). Sullivan appealed his conviction and sentence, but, on December 20, 2011, the Seventh Circuit dismissed Sullivan's appeal as frivolous. United States v. Sullivan, 457 Fed.Appx. 563, 564 (7th Cir. 2011). Sullivan filed a timely Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, which was denied, and he was denied a certificate of appealability. Sullivan v. United States, No. 12- CV-50408 (N.D. Ill. Aug. 5, 2013). He did not challenge his classification as a career offender or his ACCA sentencing enhancement in either of these proceedings.

         Sullivan next filed an application to file a successive § 2255 motion with the Seventh Circuit within one year of the Supreme Court's decision in Johnson v. United States, 135 S.Ct 2551 (2015), which held that the residual clause in the definition of violent felony under § 924(e)(2)(B)(ii) was unconstitutionally vague. The Seventh Circuit granted his application to file a successive § 2255 motion, finding that “Sullivan ha[d] made a prima facie showing that his classification as a career offender and armed career criminal, which rests in part on his convictions in Illinois for burglary of a nonresidential building, and attempted murder, may be incompatible with Johnson.” Sullivan v. United States, No. 16-2041 (7th Cir. May 26, 2016).

         However, the district court held that his challenge to his career offender status had been foreclosed by the Supreme Court's decision in Beckles v. United States, 136 S.Ct. 2510 (2016). United States v. Sullivan, Case No. 16-CV-50150 (N.D. Ill. April 12, 2017). It also found that Sullivan was not entitled to relief under Johnson for the use of his burglary conviction as an ACCA predicate offense, because burglary is a predicate offense under the enumerated clause of § 924(e) and not the residual clause. Id. at *2 (citing Holt v. United States, 843F.3d 720 (7th Cir. 2016)). While his case was pending in the district court, the Supreme Court decided Mathis v. United States, 136 S.Ct. 2243 (2016), which held that the elements of the Iowa burglary statute were broader than generic burglary and could not be used as a predicate offense under the ACCA. Sullivan argued that Mathis applied to his case as well. However, the district court held that Sullivan's Mathis claims could not be raised in his § 2255 motion since it was a case of statutory interpretation, noting that “[w]hether Sullivan might be entitled to relief under 28 U.S.C. § 2241, should he file such a motion in the district where he is confined, . . . is a question this court need not consider.” Id.

         On July 18, 2018, Sullivan filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Relying on Mathis v. United States, 136 S.Ct. 2243 (2016), he is challenging the use of all three of his prior convictions as predicate offenses for his designation as a career offender under U.S.S.G. § 4B1.1 and as an Armed Career Criminal under § 924(e). On January 16, 2019, Respondent filed a Motion to Bifurcate his Response and a Partial Response to Petitioner's Petition (Doc. 8). Sullivan has filed a timely reply. This Order follows.

         II. LEGALSTANDARD

         Generally, federal prisoners who seek to collaterally attack their conviction or sentence must proceed by way of motion under 28 U.S.C. § 2255, the so-called “federal prisoner's substitute for habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368, at *1 (7th Cir. Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). The exception to this rule is found in § 2255 itself: a federal prisoner may petition under § 2241 if the remedy under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Under the “escape hatch” of § 2255(e), “[a] federal prisoner should be permitted to seek habeas corpus only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Under Seventh Circuit case law, “[t]o pursue relief under § 2241, a petitioner must establish that ‘(1) the claim relies on a statutory interpretation case, not a constitutional case, and thus could not have been invoked by a successive § 2255 motion; (2) the petitioner could not have invoked the decision in his first § 2255 motion and the decision applies retroactively; and (3) the error is grave enough to be deemed a miscarriage of justice.'” Chazen v. Marske, No. 18-3268, 2019 WL 4254295, at *3 (7th Cir. Sept. 9, 2019) (citing Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)).

         III. DISCUSSION

         Sullivan brings this § 2241 Petition challenging his ACCA sentencing enhancement, as well as his designation as a career offender under the advisory sentencing guidelines. While the Court agrees with Respondent that Sullivan's challenge to his career offender designation under the advisory guidelines is not cognizable in his § 2241 ...