United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
David Neighbors, an inmate of the Federal Bureau of Prisons
(“BOP”) who, at the time he filed his Petition,
was incarcerated at Federal Correctional Institution
Greenville (“FCI Greenville”), brings this habeas
action pursuant to 28 U.S.C. § 2241 to challenge his
designation and sentence as a career offender in United
States v. Neighbors, 08-CR-13 (S.D. Ind.)
(“Criminal Case”). Neighbors asserts that his two
prior drug convictions no longer qualify as a felony drug
offense justifying an enhanced sentence under 21 U.S.C.
§841(b)(1)(A). He relies on the Supreme Court's
decision in Mathis v. United States, ____ U.S. ____,
136 S.Ct. 2243 (2016), and United States v. Elder,
900 F.3d 491 (7th Cir. 2018). Neighbors seeks a new sentence
without the enhancement.
matter is now before the Court for preliminary review of the
Section 2241 Petition. Rule 4 of the Federal Rules Governing
Section 2254 Cases in United States District Courts 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.
2008, Neighbors was found guilty of conspiracy to distribute
50 grams or more of cocaine base (Count 1), two counts of
distribution of 5 grams or more of cocaine base (Counts 3 and
4), and possession with intent to distribute 50 grams or more
of cocaine base (Count 5), all in violation of 21 U.S.C.
§ 841(a) (Doc. 304, Criminal Case). At trial, Neighbors
was found to have three prior drug convictions (Doc. 453, p.
1, Criminal Case). He was sentenced to life imprisonment on
each count (Doc. 304, p. 3, Criminal Case).
appealed his conviction to the Seventh Circuit on numerous
issues, including a challenge to a wiretap used in the case,
the composition of the jury, and the cross-examination of a
witness (Doc. 1, p. 2). See United States v.
Neighbors, 590 F.3d 485 (7th Cir. 2009). The Seventh
Circuit affirmed Neighbor's conviction. Id.
also filed a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255, arguing ineffective
assistance of counsel, including the failure of counsel to
challenge the enhancement of his sentence due to his prior
drug convictions (Doc. 443, 8, Criminal Case). The District
Court denied the Petition as untimely (Doc. 453, Criminal
October 27, 2016, President Barack Obama granted a
presidential clemency and commuted Neighbors sentence to 360
months (Doc. 1, p. 12). (Doc. 533, Criminal Case).
relies on the Supreme Court's decision in Mathis v.
United States, ____ U.S. ____, 136 S.Ct. 2243 (2016) to
challenge his enhanced sentence. Neighbors argues, that
after, Mathis, his prior drug conviction for
“possession of a controlled substance” no longer
qualifies as a “felony drug offense” for purposes
of the enhancement under 21 U.S.C. § 841(b)(1)(A) (Doc.
1, p. 14). His prior conviction under Ind. Code §
35-48-4-7 allegedly covers a broader category of offenses
than those covered under 21 U.S.C. § 802(44)
the limited record, the Court finds that a response is
necessary to more fully evaluate Neighbors's claims.
IS HEREBY ORDERED that Respondent Werlich shall
answer or otherwise plead on or before January 13,
2020. This preliminary order to respond
does not, of course, preclude the Government from raising any
objection or defense it may wish to present. Service upon the
United States Attorney for the Southern District of Illinois,
750 Missouri Avenue, East St. Louis, Illinois, shall
constitute sufficient service.
is ADVISED of his continuing obligation to
keep the Clerk (and each opposing party) informed of any
change in his whereabouts during the pendency of this action.
This notification must be done in writing and no later than 7
days after a transfer or other change in address occurs.