United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE
Anthony Antoine Hartwell, an inmate in the Bureau of Prisons,
filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 on October 23, 2017. (Doc. 1).
Hartwell's statutory minimum sentence was raised to
twenty years imprisonment pursuant to 21 U.S.C. §
841(b)(1)(A) (2000) and 21 U.S.C. § 851 (1970) based on
a prior Michigan felony conviction; a 1988
conviction for possession with intent to deliver
cocaine pursuant to Mich. Comp. Laws Ann. § 333.7401
(West 1988). Hartwell now invokes Mathis v. United
States, ___ U.S. ___, 136 S.Ct. 2243 (2016), to
challenge his sentence enhancement based on this prior
conviction and argues that he is entitled to be resentenced
without the enhancement. Specifically, Hartwell argues that
his Michigan conviction does not qualify as a controlled
substance offense under federal law because the Michigan
statute criminalizes the “sale” or
“delivery” of a controlled substance, which he
argues is materially different than the
“distribution” or “dispensing” of a
controlled substance. (Doc. 1, pp. 5-8).
opposes the issuance of a Writ on several grounds: (1)
Hartwell cannot satisfy the requirements of 28 U.S.C. §
2255(e)'s savings clause because his argument is not
actually premised on Mathis and therefore does not
rely on any new statutory interpretation case (Doc. 12, pp.
6-7); (2) even if Hartwell's Petition is construed to
rely on Mathis, that argument was not foreclosed by
binding precedent before Mathis was decided (Doc.
10, pp. 4-10), and; Hartwell procedurally defaulted his
current claim by failing to raise it on direct appeal
(Id. at pp. 8-10). Hartwell replied to the Response
and submitted additional briefs that included supplemental
authority for the Court. (Docs. 10, 15, 20, 24). This matter
is now ripe for resolution. For the following reasons,
Hartwell's § 2241 Petition will be
Facts and Procedural History
a jury trial, Hartwell was found guilty of one count of
Conspiracy to Distribute Controlled Substances pursuant to 21
U.S.C. §§ 841(a)(1) and 846, and one count of Felon
in Possession of a Firearm pursuant to 18 U.S.C. §
922(g). United States v. Hartwell, No.
99-cr-50057-LVP, Doc. 115 (E.D. Mich. April 17, 2000). The
Presentence Report (“PSR”) listed one prior
felony drug conviction that qualified Hartwell for an
enhanced mandatory minimum sentence under 21 U.S.C. §
841(b)(1)(A): a 1988 Michigan conviction for Possession with
Intent to Deliver Cocaine. (Doc. 13-1, p. 7). The Government
filed an information with the court regarding the prior
Michigan drug conviction pursuant to 21 U.S.C. § 851.
(See Doc. 12-1). Hartwell filed a written objection
to the use of this conviction to enhance his sentence, and
after hearing argument regarding this and other objections
relating to the PSR, the sentencing court found that
Hartwell's prior Michigan drug conviction was a
qualifying predicate conviction to support an enhanced
mandatory minimum sentence pursuant to 21 U.S.C. §
841(b)(1)(A). See Hartwell, No. 99-cr-50057-LVP,
Doc. 154 (E.D. Mich. Oct. 13, 2000); (see also Doc.
12-2, pp. 4-14).
was sentenced to life imprisonment on December 11, 2000.
Hartwell, No. 99-cr-50057-LVP, Doc. 166 (E.D. Mich.
Dec. 11, 2000). His sentence was later reduced to 360 months
imprisonment after he successfully petitioned for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2).
Id. at Doc. 323.
Appeal and First Motion Under 28 U.S.C. § 2255
direct appeal, Hartwell argued that the district court erred
in several of its pre-trial and evidentiary rulings, and also
alleged error in his sentencing to the extent the court made
factual findings regarding the amount of drugs involved in
his drug distribution conspiracy count. United States v.
Copeland, 321 F.3d 582 (6th Cir. 2003). However,
Hartwell did not appeal the sentencing court's use of his
prior Michigan felony conviction to enhance his sentence
under 21 U.S.C. § 841(b)(1)(A). Id. The Seventh
Circuit upheld Hartwell's conviction and sentence in
their entirety. Id. at 607.
filed a motion under 28 U.S.C. § 2255 in January of
2004. Hartwell, No. 99-cr-50057-LVP, Doc. 242 (E.D.
Mich. Jan. 23, 2004). At that time, he asserted that his
counsel provided him ineffective assistance before, during,
and after trial, that the Government engaged in prosecutorial
misconduct, and that the Government improperly used immunized
grand jury testimony against him during the course of his
trial (See id. at Doc. 261, pp. 2-3). The motion was
denied in all respects (Id. at p. 28) and the Sixth
Circuit Court of Appeals denied Hartwell's request for a
certificate of appealability, finding he had failed to make a
“substantial showing of the denial of a constitutional
right.” Id. at Doc. 269, p. 4.
Applications for Authorization to File a Second or Successive
§ 2255 Motion
began filing applications for authorization to file a second
or successive petition for collateral review with the Sixth
Circuit in 2013. The first application again challenged the
sentencing court's factual findings regarding the
quantity of drugs related to his drug conspiracy conviction,
which was used to increase his sentence. Id. at Doc.
324, pp. 1-8. Hartwell did not make any argument relating to
the use of his prior Michigan conviction as a predicate
felony drug offense to increase his mandatory minimum
sentence under 21 U.S.C. § 841(b)(1)(A). Id.
This application was summarily dismissed by the Sixth
Circuit. Id. at Doc. 332.
most recent application for authorization to file a
successive § 2255 petition was filed in March of 2017.
(Doc. 12-3). In that application, Hartwell argued that
Johnson v. United States, 576 U.S. ___, 135 S.Ct.
2551 (2015), and Mathis v. United States, ___ U.S.
___, 136 S.Ct. 2243 (2016) required the invalidation of the
sentence enhancement based on his prior Michigan drug
conviction. Id. at pp. 13-21. Particularly, Hartwell
argued that his prior Michigan conviction was not properly
considered to be a “felony drug offense” and that
the conduct underlying the prior conviction was part of his
later conspiracy conviction under 21 U.S.C. §§
841(a)(1) and 846. Id. The Sixth Circuit again
denied Hartwell's application, finding that “none
of the authority [cited by Hartwell] applies to his
case” and that he had neither produced new evidence
that demonstrated his actual innocence nor identified a new
rule of constitutional law made retroactive by the Supreme
Court that would entitle him to his requested relief.
Hartwell, No. 99-cr-50057-LVP, Doc. 349 (E.D. Mich.
Sept. 5, 2017).
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). Aside from the direct appeal process, a prisoner who
has been convicted in federal court is limited to challenging
his conviction and sentence by bringing a motion pursuant to
28 U.S.C. § 2255 in the court which sentenced him, and
is generally limited to only one such challenge
under § 2255. A prisoner 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 reasonable factfinder would ...