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Hartwell v. Werlich

United States District Court, S.D. Illinois

December 20, 2019

ANTHONY HARTWELL, #25830-039, Petitioner,
v.
T. G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          STACI M. YANDLE, UNITED STATES DISTRICT JUDGE

         Petitioner 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[1] 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).

         Respondent 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 DENIED.

         Relevant Facts and Procedural History

         Following 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).

         Hartwell 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.

         Direct Appeal and First Motion Under 28 U.S.C. § 2255

         On 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.

         Hartwell 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.

         Later Applications for Authorization to File a Second or Successive § 2255 Motion

         Hartwell began filing applications for authorization to file a second or successive petition for collateral review with the Sixth Circuit in 2013.[2] 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.

         Hartwell's 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).

         Applicable Legal Standards

         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). 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 ...


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