McGee v. Krueger

Filing 5

ORDER & OPINION entered by Judge Joe Billy McDade on 3/21/2017. For the foregoing reasons, the Court finds Petitioner's Motion For Reconsideration (Doc. 4) is DENIED. IT IS SO ORDERED. See full written Order. (VH, ilcd)

E-FILED

Tuesday, 21 March, 2017 01:38:55 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

DARIUS R. MCGEE,
Petitioner,
v.
J.E. KREUGER, Warden,
Respondent.

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Case No. 1:17-cv-1086-JBM

ORDER & OPINION
This matter is before the Court on the Petitioner’s Motion For Reconsideration
Pursuant to Federal Rule of Civil Procedure 59 (Doc. 4). For the reasons that follow,
the motion is DENIED.
LEGAL STANDARDS
A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be
granted if a movant clearly establishes that the court made a manifest error of law
or fact, or presents newly discovered evidence. LB Credit Corp. v. Resolution Trust
Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). A manifest error is the “wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal quotation marks omitted).
BACKGROUND
On December 23, 2009, Petitioner pled guilty to a single count of distributing
crack cocaine in violation of 21 U.S.C. § 841(a)(1). United States v. McGee, No. 3:08cr-50037-1 (N.D. Ill.). The Court found that Petitioner qualified as a Career Offender

pursuant to §4B1.1 of the United States Sentencing Guidelines (“Guidelines”) and
attributed an offense level of 34 to him. After a three level reduction for acceptance
of responsibility pursuant to § 3E1.1 of the Guidelines, Petitioner was given a total
offense level of thirty-one and a criminal history category of VI for thirty-one
aggregated criminal history points, which yielded him a guidelines imprisonment
range of 188 to 235 months. The sentencing court then sentenced Petitioner to a term
of imprisonment of 264 months, which was above the guidelines range that
corresponded to Petitioner’s offense level and criminal history category. (Doc. 68,
United States v. McGee, No. 3:08-cr-50037-1, Order of the Seventh Circuit affirming
Judgement of District Court). Petitioner’s Plea Agreement contained the following
caveat: “It is understood by the parties that the sentencing judge is neither a party
to nor bound by this Plea Agreement and may impose a sentence up to the maximum
penalties as set forth above.” (See Doc. 46 at 17, United States v. McGee, No. 3:08-cr50037, Plea Agreement). The maximum statutory sentence for the offense to which
Petitioner pled was actually 480 months imprisonment. (See Doc. 46 at 10, United
States v. McGee, No. 3:08-cr-50037, Plea Agreement).
Petitioner appealed his sentence to the United States Court of Appeals for the
Seventh Circuit on the grounds that his sentencing court had erred in denying a
motion he had made under 18 U.S.C. § 3582(c)(2) to reduce his sentence based on a
retroactive change to the offense levels for crack cocaine offenses. United States v.
McGee, 530 F. App’x 574 (7th Cir. 2013). The district court had denied that motion on
the ground that Petitioner was sentenced as a career offender and thus the change to
offense levels did not affect his guidelines range. Id. His sentence was affirmed. Id.
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Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, correct or set aside
his sentence on November 24, 2010. In it, he argued that he received ineffective
assistance of counsel because his trial counsel failed to object to the amount of drugs
at issue, which had the effect of exposing him to an inflated offense level and thus an
inflated sentence range. (Doc. 1, No. 3:10-cv-50305, United States v. McGee). The
court denied Petitioner’s claim in a minute entry on the ground that it was barred by
his Plea Agreement. (Doc. 3, No. 3:10-cv-50305, United States v. McGee).
On February 21, 2017, Petitioner filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (Doc. 1) arguing that relief under § 2255 was insufficient
or ineffective. Petitioner argued that his sentencing court improperly found him to be
a career offender under §4B1.1 of the Guidelines. He expressly relied on Hinkle v.
United States, 832 F.3d 569 (5th Cir. 2016), in arguing that two of his drug convictions
do not qualify as “controlled substance offenses” as that term is defined in §4B1.2 of
the Guidelines.
On March 6, 2017, this Court entered an Order and Opinion denying the
petition on the ground that it did not satisfy the requisites for a federal prisoner to
forego use of a motion to vacate a sentence under 28 U.S.C. § 2255. (Doc. 2 at 5). The
Court also observed that the relief requested by Petitioner if given, would likely have
no effect on his sentence anyway. (Doc. 2 at 6). Petitioner now contends that the Court
erred in its treatment of his petition in three ways. First, he contends that he did not
rely on Hinkle v. United States, 832 F.3d 569 (5th Cir. 2016) in support of his petition,
but rather that he relied upon Mathis v. United States, 136 S. Ct. 2243 (U.S. 2016).
Second, he contends Mathis is retroactive. Third, he states the Court erred in
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observing that giving him the relief requested would not have any actual impact on
his sentence. As explained below none of these alleged points of error are sufficient
to warrant reconsideration.
DISCUSSION
Petitioner’s first point—that he did not rely on Hinkle v. United States, 832
F.3d 569 (5th Cir. 2016) in support of his petition—is flat out wrong. He
unambiguously argued in his petition that Hinkle commanded the relief he sought.
(Doc. 1 at 1 (“Mr. McGee invokes the savings clause provision to obtain relief based
on the recent decision of Hinkle v. United States...”), at 3 (“In Mr. McGee’s case,
Section 2255 for a second or successive motion does not provide an avenue through
which a petitioner could rely on for the Hinkle v. United States decision.”), at 4
(“Petitioner holds that predicate(s) 1 and 2 , do not qualify as a ‘controlled substance
offense’ in light of United States v. Hinkle....”), and at 6 (“Based on this, Petitioner
holds that he is actually innocent of the Career Offender enhancement as, with the
holdings of Hinkle and the improper application of the predicate(s), Petitioner
actually has only 0 predicate convictions that could be used for enhancement
purposes and so could not have been sentenced with this enhancement.”)). To now
argue that he did not rely on Hinkle is completely baseless, and frankly, insulting. In
any case, this point of alleged error does not warrant reconsideration. Hinkle is nonbinding case on this Court with no retroactive effect and the Court did not err in its
treatment of Petitioner’s argument based on Hinkle.
Petitioner’s contention that Mathis is retroactive on collateral review is also
without merit. Petitioner has produced nothing to counter the fact that the Seventh
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Circuit—whose pronouncements of the law this Court is bound to follow—held that
Mathis has not been deemed retroactive by the United States Supreme Court. Holt v.
United States, 843 F.3d 720, 722 (7th Cir. 2016) (“Mathis has not been declared
retroactive by the Supreme Court—nor is it a new rule of constitutional law.”).
This Court does not believe Mathis is retroactive. First of all, retroactivity
analyses deal with new rules. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987). “[A]
case announces a new rule when it breaks new ground or imposes a new obligation
on the States or the Federal Government. To put it differently, a case announces a
new rule if the result was not dictated by precedent existing at the time the
defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288, 301 (1989)
(citations omitted) (emphasis added). It is doubtful that Mathis even announced a
rule inasmuch as it only clarified that an exception to an already established rule
could not be applied. The issue before the court in Mathis was whether the Armed
Career Criminal Act (the “ACCA”), codified at 18 U.S.C. § 924(e), had as an exception
to the longstanding general rule that a prior crime qualifies as an ACCA predicate if,
and only if, its elements are the same as or narrower than those of the generic offense,
even when a defendant is convicted under a statute that lists multiple, alternative
means of satisfying one (or more) of its elements. 136 S. Ct. at 2247-48. The Court
held that such an exception could not exist under the Court’s established precedent.
Id.
The Mathis opinion is replete with references to how its outcome was dictated
by the Supreme Court’s existing precedent, and thus, not new. For example, the
Mathis court wrote: “ACCA, as we have always understood it, cares not a whit about
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[the particular facts underlying a conviction].” 136 S. Ct. at 2248 (emphasis added)
citing Taylor v. United States, 495 U.S. 575, at 599–602 (1990); see also 136 S. Ct. at
2251 (“the elements of Mathis’s crime of conviction (Iowa burglary) cover a greater
swath of conduct than the elements of the relevant ACCA offense (generic burglary).
See supra, at 2249 – 2250. Under our precedents, that undisputed disparity resolves
this case. We have often held, and in no uncertain terms, that a state crime cannot
qualify as an ACCA predicate if its elements are broader than those of a listed generic
offense. See, e.g., Taylor, 495 U.S., at 602, 110 S. Ct. 2143. How a given defendant
actually perpetrated the crime—what we have referred to as the “underlying brute
facts or means” of commission, Richardson, 526 U.S., at 817, 119 S. Ct. 1707—makes
no difference; even if his conduct fits within the generic offense, the mismatch of
elements saves the defendant from an ACCA sentence. Those longstanding
principles, and the reasoning that underlies them, apply regardless of whether a
statute omits or instead specifies alternative possible means of commission.”); at 2253
(“ACCA, as just explained, treats such facts as irrelevant: Find them or not, by
examining the record or anything else, a court still may not use them to enhance a
sentence. And indeed, our cases involving the modified categorical approach have
already made exactly that point.”); at 2257 (“Our precedents make this a
straightforward case. For more than 25 years, we have repeatedly made clear that
application of ACCA involves, and involves only, comparing elements.”). So Mathis
did not announce a new rule, rather it only clarified when the longstanding rule of
Taylor applied. See United States v. Taylor, No. 16-6223, 2016 WL 7093905, at *4
(10th Cir. Dec. 6, 2016) (holding similarly and collecting cases). The Court has not
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committed a manifest error of law in its treatment of Petitioner’s alleged Mathis
claim.
Petitioner’s third point of alleged error is also without merit. The Court found
that Petitioner could not satisfy the requirements of Davenport. Therefore, it
concluded that § 2241 relief was not available to Petitioner and the petition must be
denied pursuant to 28 U.S.C. §§ 2255(e), 2244(a). McFarland v. Scott, 512 U.S. 849,
856 (1994) (federal courts are empowered to dismiss summarily any habeas petition
that appears legally insufficient on its face). For that reason, the Court’s discussion
as to why Petitioner’s claim failed on the merits, even if incorrect, would not merit
reconsideration, as it did not cause the Court to enter judgment against Petitioner.
CONCLUSION
For the foregoing reasons, the Court finds Petitioner’s Motion For
Reconsideration (Doc. 4) is DENIED. IT IS SO ORDERED.

Entered this 21st day of March, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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