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Rank v. Werlich

United States District Court, S.D. Illinois

November 15, 2019

RANDALL LEE RANK, # 03246-029, Petitioner,
v.
T.G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          MARK A. BEATTY, UNITED STATES MAGISTRATE JUDGE

         Petitioner Randall Lee Rank (“Rank”), a federal prisoner incarcerated at FCI-Greenville, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on June 4, 2019. (Doc. 1). He invokes Mathis v. United States, -- U.S. --, 136 S.Ct. 2243 (2016), to argue that his two prior Iowa state drug convictions should not have been used to increase the statutory minimum penalty for his federal drug conviction under 18 U.S.C. § 841(a)(1), (b)(1)(A), and § 851. Rank is serving a 240-month sentence imposed by the Northern District of Iowa in No. 06-CR-3011-MWB in 2006.

         Respondent T.G. Werlich (“Respondent”) filed a Motion to Dismiss the Habeas Petition (Doc. 15), arguing that Rank's written guilty plea agreement waived his right to bring a collateral attack. Rank did not file a response to the motion, despite the Court's admonition that a failure to respond could be considered an admission of the motion's merits, and would likely lead to dismissal. (Doc. 19). For the reasons stated below, the motion to dismiss (Doc. 15) is granted.

         Relevant Facts and Procedural History

         Trial Court Proceedings

         Rank was indicted in March 2006 on five counts relating to manufacturing and distributing methamphetamine, as well as associated conspiracy, possession, and attempt offenses. (Doc. 1, pp. 6-7; Doc. 15, p. 3; Doc. 15-3). The Government filed a notice of intent to seek enhanced penalties under 21 U.S.C. § 851, based on Rank's prior felony drug conviction. (Doc. 1, p. 7; Doc. 15, p. 3; Doc. 15-4). In July 2006, Rank entered into a written plea agreement in which he pled guilty to Counts 1-3 of the indictment. (Doc. 1, p. 7; Doc. 15-5). Count 1 was for conspiracy to manufacture and distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A), and distribution/possession with intent to distribute 500 grams or more of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), & 846. Id. Counts 2 and 3 were for manufacture and attempt to manufacture 5 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), & 846. Id. The remaining counts were dismissed.

         The plea agreement included an admission by Rank that he had been convicted in 2003 in Webster County, Iowa of felony delivery of methamphetamine. (Doc. 1, p. 7; Doc. 15, p. 4; Doc. 15-5, p. 14, ¶ 37E). Further, the agreement included a waiver of Rank's right to appeal or collaterally attack his conviction and sentence. (Doc. 15, p. 4; Doc. 15-5, p. 12, ¶ 35).

         The presentence report (“PSR”) calculated Rank's advisory sentencing guideline at a range of 235-293 months. However, the statutory range for Count 1 under 21 U.S.C. §§ 841(b)(1)(A) & 851 was a minimum of 20 years to a maximum of life, because of the enhancement based on Rank's 2003 state felony drug conviction.[2] (Doc. 17, pp. 17-18). As a result, the bottom of Rank's sentencing guideline range was raised to 240 months. Id. The PSR noted that without the plea agreement, the Career Offender enhancement could have been applied to increase Rank's guideline range to 262-327 months. (Doc. 15, p. 5; Doc. 17, p. 18). Further, it appeared that Rank had a second prior felony drug conviction, which could have subjected him to a statutory mandatory minimum of life rather than 20 years. Id.; (Doc. 1, p. 8 n.1).

         In October 2006, the district court sentenced Rank to the statutory mandatory minimum of 240 months.

         Post-Conviction Proceedings

         Rank did not file an appeal, but in October 2007, he filed a motion under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. (Doc. 1, pp. 3, 7; Doc. 15-6); Rank v. United States, No. 07-cv-3075-MWB (N.D. Iowa). On October 14, 2009, the district court denied the motion. (Doc. 15-8). The Eighth Circuit denied Rank's application for a certificate of appealability and dismissed his appeal on January 19, 2010. Rank v. United States, No. 07-cv-3075-MWB, Doc. 13 (N.D. Iowa).

         In July 2017, Rank filed a motion under Federal Rule of Civil Procedure 60(b) in the district court, challenging his sentencing enhancement under § 851 and again asserting his ineffective assistance of counsel claim. (Doc. 15, p. 6; Doc. 15-10). The district court construed this as an unauthorized second or successive § 2255 motion, and denied it in October 2017. (Doc. 15-11). Rank's subsequent petition to the Eighth Circuit for authorization to file a successive habeas application was denied on June 7, 2019. (Doc. 15-11). This action followed.

         Applicable Law

         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). Thus, aside from the direct appeal process, a prisoner who has been convicted in federal court is ordinarily 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). A prisoner is also normally limited to only one challenge of his conviction and sentence under § 2255. He or she may not file a “second or successive” § 2255 motion unless a panel of the appropriate court of appeals certifies that such motion contains either 1) newly discovered evidence “sufficient to establish by clear and convincing evidence that no ...


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