United States District Court, C.D. Illinois, Peoria Division
ORDER AND OPINION
DARROW, CHIEF UNITED STATES DISTRICT JUDGE
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
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).
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).
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).
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.
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).
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.
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.
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)).
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