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Brown v. Werlick

United States District Court, S.D. Illinois

November 6, 2019

DERIC BROWN, #06376-089, Petitioner,
v.
T.G. WERLICK, Respondent.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE

         Petitioner Deric Brown, an inmate who is currently incarcerated at the United States Penitentiary located in Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the validity of his sentence in Unites States v. Brown, No. 01-cr-00196-JPS-1 (E.D. Wis. 2002) (“Criminal Case”). Brown asserts that his sentence was unlawfully enhanced according to the ruling in Mathis v. United States, 136 S.Ct. 2243 (2016), and in violation of Section 403 of the First Step Act.

         This matter is now before the Court for review of the Petition pursuant to Rule 4 of the Federal Rules Governing Section 2254 Cases in United States District Courts, which provides that upon preliminary consideration by the district judge, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b) gives this Court the authority to apply the rules to other habeas corpus cases.

         Background

         Brown pled guilty in 2002 to committing multiple bank robberies in violation of 18 U.S.C. §§ 2113(a) & (d) and two counts of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). (Doc. 1, pp 1-2). See also Brown v. United States, No. 16-cv-471-JPS, Doc. 3 (E.D. Wis. June 17, 2016) (response from the government to Brown's 2255 motion discussing Brown's criminal case). His appeal was dismissed for lack of jurisdiction because he filed his notice of appeal on October 3, 2005, years after the deadline to file an appeal under Rule 4(b) of the Federal Rules of Appellate Procedure. Criminal Case, Doc. 33.

         Following the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Brown filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 arguing that federal “armed bank robbery is not a ‘crime of violence' as defined in Section 924(c); and, as such, his conviction for brandishing a firearm in relation to a crime of violence must be vacated.” Brown v. United States, No. 16-cv-471-JPS, Doc. 5 (E.D. Wis. July 20, 2016). The district court denied the motion, and the Seventh Circuit Court of Appeals affirmed, holding that federal bank robbery constitutes a crime of violence under Section 924(c)(3)(A). Brown v. United States, No. 16-cv-471-JPS, Doc. 17 (E.D. Wis. July 20, 2016).

         In Brown's criminal case, he received two of his convictions in the same indictment pursuant to Section 924(c) - "a first conviction carries a mandatory, consecutive term of imprisonment of 7 years, and a second carries an additional mandatory, consecutive term of imprisonment of 25 years”. Brown v. United States, No. 16-cv-471-JPS, Doc. 3 (E.D. Wis. June 17, 2016) (response from the government to Brown's 2255 motion discussing Brown's criminal case); (Doc. 1, p. 1). In 2002 at the time of conviction, 18 U.S.C. § 924(c)(1)(A) provided that:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-...
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years;…
(C) In the case of a second or subsequent conviction under this subsection, the person shall-
(i) be sentenced to a term of imprisonment of not less than 25 years…

18 U.S.C.A. § 924(c)(1) (2002) (West. 2019)(emphasis added). Since then, Congress has passed the First Step Act of 2018. First Step Act of 2018, Pub. L. No. 115-391, §403, 132 Stat. 5194, 5221-5222 (2018). The language of Section 924(c)(1)(C) was changed from “second or subsequent conviction under this subsection” to “violation of this subsection that occurs after a prior conviction under this subsection has become final.” Id.; (Doc. 1, p. 5). These modifications to the language “eliminates the practice of ‘stacking multiple § 924(c) charges in the same indictment to qualify for the 25-year mandatory minimum for a second or subsequent conviction under § 924(c)(1)(C)(i)' and allow ‘the enhanced mandatory minimum… only if the prior qualifying § 924(c) conviction was final under aprior conviction.'”Midkiff v. Warden, FCI-Edgerfield, No. 19-cv-0077, 2019 WL 4894234 at *2 (D.S.C. Oct. 10, 2019) (quoting the Report and Recommendation).

         Discussion

         A prisoner who has been convicted in federal court is generally limited to challenging his conviction and sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the court which sentenced him. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). Under very limited circumstances, a prisoner may employ 28 U.S.C. § 2241 to challenge his conviction and sentence. More specifically, Section 2255(e) contains a “savings clause” which authorizes a federal prisoner to file a Section 2241 petition where the remedy under Section 2255 is “inadequate or ineffective to test the legality of his detention.” “A procedure for postconviction relief can fairly be 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.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). In order to trigger the savings clause, a petitioner must meet three conditions: (1) he must show that he relies on a new statutory interpretation case rather than a constitutional case; (2) he must show that he relies on a decision that he could not have invoked in his first Section 2255 motion and that applies retroactively; and (3) 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 ...


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