Sharp v. Krueger

Filing 7

ORDER entered by Chief Judge James E. Shadid on 3/19/2018. Accordingly, the Court GRANTS the Respondent's Motion 6 and DENIES the Petitioner's Petition 1 . This matter is now terminated. See full written Order.(VH, ilcd)

E-FILED

Monday, 19 March, 2018 04:34:43 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
LEROY A. SHARP,
Petitioner,
Case No. 1:17-cv-01402-JES
v.
STEVE KALLIS,
Respondent.

ORDER
Before the Court are the Petitioner, Leroy Sharp’s, pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (D. 1) 1 and the Respondent, the United States of America’s,
Motion for Leave to Bifurcate its Response and Partial Response to Petitioner’s Petition (D. 6).
For the reasons set forth below, the Respondent’s Motion (D. 6) is GRANTED and the Petitioner’s
Petition (D. 1) is DENIED. This matter is now terminated.
On September 5, 2017, Petitioner filed his Petition, arguing that, pursuant to Mathis v.
United States, 136 S. Ct. 2243 (2016), his sentence was calculated using improper predicates to
enhance his sentence. Id. at pp. 6-8. Given two decisions from the Seventh Circuit, Hawkins v.
United States, 706 F.3d 820 (7th Cir. 2013) (Hawkins I) and Hawkins v. United States, 724 F.3d
915 (7th Cir. 2013) (Hawkins II), the Petitioner is precluded from obtaining relief.
Together, Hawkins I and Hawkins II hold that a petitioner may not seek on collateral review
to revisit a district court’s calculation of an offender’s advisory guidelines range. Given the interest
in finality of criminal proceedings, in Hawkins I the Seventh Circuit held an erroneous
interpretation of the guidelines should not be corrigible in a post-conviction proceeding so long as

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Citations to the Docket in this case are abbreviated as “D. __.”

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the sentence actually imposed was not greater than the statutory maximum. Hawkins I, 706 F.3d
at 823-25. It specifically distinguished the advisory guidelines from the mandatory system in place
at the time of Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011) (holding Narvaez’s improper
sentence under the mandatory guidelines constituted a miscarriage of justice). Hawkins moved
for rehearing in light of Peugh v. United States, 133 S. Ct. 2072 (2013), in which the Supreme
Court held the Guidelines were subject to constitutional challenges “notwithstanding the fact that
sentencing courts possess discretion to deviate from the recommended sentencing range.” Peugh,
133 S. Ct. at 2082.
The Seventh Circuit denied rehearing because Peugh was a constitutional case whereas
Hawkins I involved a miscalculated guidelines range, the legal standard in Peugh was lower than
that required to obtain post-conviction relief, and Peugh’s retroactivity was uncertain. Hawkins
II, 724 F.3d at 916-18 (“[I]t doesn’t follow that postconviction relief is proper just because the
judge, though he could lawfully have imposed the sentence that he did impose, might have imposed
a lighter sentence had he calculated the applicable guidelines sentencing range correctly.”).
Petitioner’s claim is thus untenable. Accordingly, the Court GRANTS the Respondent’s Motion
(D. 6) and DENIES the Petitioner’s Petition (D. 1). This matter is now terminated.
It is so ordered.
Entered on March 19, 2018

_s/ James E. Shadid _
James E. Shadid
Chief United States District Judge

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