Johnson v. Thompson

Filing 5

ORDER & OPINION entered by Judge Joe Billy McDade on 11/6/2017. For the foregoing reasons, the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 1 that it should be DISMISSED on its merits. CASE TERMINATED. See full written Order.(VH, ilcd)

E-FILED

Tuesday, 07 November, 2017 09:30:38 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

CENECA R. JOHNSON,

)
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Petitioner,
)
)
v.
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STEVE KALLIS, Warden of FCI PEKIN, )
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Respondent.
)

Case No. 17-cv-1428

ORDER&OPINION
This matter is before the Court upon the Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2241 (Doc. 1) filed by Petitioner, CENECA R. JOHNSON. For the
reasons stated below, the Petition is DISMISSED ON ITS MERITS.
LEGAL STANDARDS
This Court, in its discretion, applies Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts to cases such as these purporting to
arise under 28 U.S.C. § 2241. See Rules Governing Section 2254 Cases in the United
States District Courts, Rule 1(b). 1 Rule 4 requires the Court to “promptly examine”
the Petition, and dismiss it if it “plainly appears . . . that the petitioner is not entitled
to relief.” Pursuant to Rule 4 then, the Court will examine the Petition and determine
whether it plainly appears the Petitioner is entitled to relief.

See also Poe v. United States, 468 F.3d 473, 477 n.6 (7th Cir. 2006); Hudson v.
Helman, 948 F. Supp. 810, 811 (C.D. Ill. 1996) (ruling Rule 4 takes precedence over
28 U.S.C. § 2243’s deadlines and gives court discretion to set deadlines).

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BACKGROUND
Petitioner is currently incarcerated at the Federal Correctional Institution in
Pekin, Illinois. (Doc. 1 at 1). He pled guilty to the offense of bank robbery in violation
of 18 U.S.C. §2113(a) and (d) and was sentenced on October 18, 2013 to 262 months
imprisonment. That term of imprisonment was greater than the advisory guideline
range yet slightly less than the statutory maximum of 300 months. See 18 U.S.C> §
2113(d).
Petitioner appealed his sentence to the Eighth Circuit Court of Appeals
claiming the sentence was unreasonable. The court rejected Petitioner’s claim and
held “the district court properly determined that Johnson was a career offender, see
U.S.S.G. § 4B1.1(a); United States v. Clarke, 564 F.3d 949, 955 (8th Cir. 2009) (de
novo review), and did not impose an unreasonable sentence by varying upward after
providing multiple reasons for doing so based on specified sentencing factors in 18
U.S.C. § 3553(a)….” United States v. Johnson, 560 F. App’x 647, 648 (8th Cir. 2014)
(emphasis added). After an unsuccessful attempt at certiorari before the United
States Supreme Court, Johnson v. United States, 135 S. Ct. 1474 (2015), Petitioner
filed his first motion under 28 U.S.C. § 2255, which was summarily dismissed with
the dismissal upheld on appeal. See Docket of Johnson v. United States, 4:15-cv00340, (S.D. Iowa). Thereafter, Petitioner filed a second motion under 28 U.S.C. §
2255. Johnson v. United States, 4:16-cv-00238, (S.D. Iowa). In that motion, he argued
that he was entitled to relief pursuant to the United States Supreme Court’s decision
in Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Supreme Court

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determined that the residual clause definition of “crime of violence” under the Armed
Career Criminal Act was unconstitutionally vague. The district court found that the
Johnson decision would not afford Petitioner any relief because the residual clause
definition of “crime of violence” was not used to determine that Petitioner was a
career offender. (Doc. 2 at 2, Johnson v. United States, 4:16-cv-00238, (S.D. Iowa)).
Thereafter, the Petitioner petitioned the Eighth Circuit Court of Appeals for
authorization to file a successive habeas application in the district court and that
petition was summarily denied.
Now Petitioner brings a Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2241 (Doc. 1) claiming that his sentencing court misapplied the career offender
enhancement in Petitioner’s sentence because his second degree robbery conviction
for violating Iowa Code §§ 711.1 and 3 was not a qualifying conviction under Mathis
v. United States, 136 S. Ct. 2243 (2016). In Mathis, the Supreme Court concluded that
a conviction for burglary in Iowa cannot serve as a predicate crime under the ACCA.
In doing so, the Mathis court clarified and reaffirmed the well-known categorical
approach.
DISCUSSION
Federal prisoners like Petitioner who wish to collaterally attack their
convictions or sentences ordinarily must do so under 28 U.S.C. § 2255. Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012). They may petition under 28 U.S.C. § 2241 only in
the rare circumstance in which the remedy provided under § 2255 “is inadequate or
ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e) (which is often

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referred to as “the Savings Clause”). The mere fact that Petitioner’s claim would be a
second or successive § 2255 motion does not render § 2255 inadequate or ineffective.
See In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998).
In Davenport, the Seventh Circuit articulated three conditions that a petitioner
must meet in order to invoke the Savings Clause on the basis of a change in law. Id.
at 610-612. These conditions were summarized in Brown v. Caraway, 719 F.3d 583
(7th Cir. 2013), another case in which a petitioner brought a § 2241 petition based
upon a Supreme Court decision interpreting the residual clause of the ACCA. First,
a prisoner “must show that he relies on a statutory-interpretation case rather than a
constitutional case;” second, he “must show that he relies on a retroactive decision
that he could not have invoked in his first § 2255 motion;” and third, “[the] sentence
enhancement [must] have been a grave enough error to be deemed a miscarriage of
justice corrigible therefore in a habeas corpus proceeding.” Id. at 586 (citations
omitted) (internal quotation marks omitted).
Mathis is “a case of statutory interpretation,” and “did not announce [a new
rule of constitutional law].” Dawkins v. United States, 829 F.3d 549, 551 (7th Cir.
2016). Thus, Petitioner can satisfy the first Davenport requirement. He could not
have relied on Mathis in his first 2255 motion because Mathis had not yet been
decided. So he may have a colorable argument that he can satisfy the second
Davenport requirement.
However, there is no doubt in the Court’s opinion that Petitioner cannot satisfy
the third Davenport requirement, which is that the sentencing error was grave

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enough to be deemed a miscarriage of justice corrigible in a habeas corpus proceeding.
Caraway, 719 F.3d at 586. In Caraway, the Seventh Circuit explained that “the
misapplication of the sentencing guidelines, at least where… the defendant was
sentenced in the pre-Booker era, represents a fundamental defect that constitutes a
miscarriage of justice corrigible in a § 2241 proceeding.” Id. at 588 (emphasis added)
citing Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011). Petitioner was
sentenced in the post-Booker era, in which the sentencing guidelines are merely
advisory.
Other cases have severely limited what aspects of sentencing errors are
deemed corrigible on collateral review in this jurisdiction. In Hawkins v. United
States, 706 F.3d 820 (7th Cir. 2013) for example, the Seventh Circuit held that a
district court’s error in finding an escape offense to be a “crime of violence” under the
Guidelines and thus sentencing the defendant as a career offender when he was not,
was not a correctable error on collateral review since the sentence did not exceed the
statutory maximum. Id. at 823. That is the exact same situation here.
Petitioner was sentenced to 262 months which is thirty-eight months less than
the statutory maximum of 300 months. See 18 U.S.C. § 2113(d) (“Whoever, in
committing, or in attempting to commit, any offense defined in subsections (a) and
(b) of this section, assaults any person, or puts in jeopardy the life of any person by
the use of a dangerous weapon or device, shall be fined under this title or imprisoned
not more than twenty-five years, or both.”) (emphasis added). Thus, Petitioner has

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failed to raise a sentencing error corrigible on collateral review in this jurisdiction,
just like the petitioner in Hawkins similarly failed.
Moreover, the Eighth Circuit has already held that Petitioner’s sentence was
not unreasonable in light of the district court’s discussion of multiple reasons for
imposing the sentence that it choose based on specified sentencing factors in 18
U.S.C. § 3553(a). United States v. Johnson, 560 F. App’x 647, 648 (8th Cir. 2014).
Lastly and most importantly, this Court is loath to disturb a sentence on the
basis of a purported error in the advisory guidelines calculation when the sentencing
court explained it was not even relying on the advisory guidelines range in fashioning
its sentence. The sentencing court stated on the record during Petitioner’s sentencing:
In fashioning an appropriate sentence, I have considered each of the
factors found in Title 18, United States Code, Section 3553(a). I have
considered the nature and circumstances of the offense as well as the
history and characteristics of Mr. Johnson.
***
In considering the question of just punishment, I note that he has a
history that involves carrying weapons in 1999 for which his supervision
was revoked. He's got a conviction for theft in 2000, for delivery of
cocaine base in 2000 for which his probation or parole was revoked on
multiple occasions. He's got a possession of burglar tools conviction
again for which his supervision was revoked. Interference with official
acts. Robbery March of 2005, 25-year term of imprisonment. Of course,
under our state system that does not equate to a 25-year term of
incarceration; but his criminal history shows acts of violence, drug
trafficking, theft, and weapons which is an obviously dangerous
combination.
I have considered the need for adequate deterrence to criminal conduct.
The need to protect the public from further crimes from this defendant
is real. I have considered the sentencing options that are available to the
Court. I have looked to the Sentencing Guidelines as an important, but
not in any way controlling factor to be considered.
***
I conclude that the Guideline sentencing system inadequately addresses
the circumstances of this defendant and that this range is unreasonable.
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I find it unreasonable because I don't believe that you have accepted
responsibility at all. I am going to sentence you above the Guideline
range to reflect that lack of acceptance of responsibility together with
the aggravating factors previously identified.
***
I specifically find that the sentence is sufficient, but it is not greater
than necessary to address the essential sentencing considerations.
(Transcript of Sentencing (Doc. 79 at 26- 29, United States v. Johnson, No. 3:12-cr000079-JAJ-TJS (S.D. Iowa Oct. 18, 2013)) (emphasis added)). The above quoted
excerpts from the Petitioner’s sentencing transcript confirm the court did not rely on
the advisory guidelines range in fashioning its sentence but instead considered each
of the factors found in Title 18, United States Code, Section 3553(a), and came up
with a sentence it thought was sufficient, but no greater than necessary, to address
the essential sentencing considerations.
In short, the Court was able to discern from the face of the petition and publicly
available documents that Mr. Johnson received a sentence that does not offend the
Constitution or any other laws of the United States and he is not entitled to proceed
with this petition under 28 U.S.C § 2241. 2
CONCLUSION
For the foregoing reasons, the Petition for a Writ of Habeas Corpus Under 28
U.S.C. § 2241 (Doc. 1) that is should be DISMISSED on its merits.

CASE

TERMINATED.

The Advisory Committee Notes to Rule 4 provide that the judge may order
[transcripts, sentencing records, and copies of state court opinions] for the judge’s
consideration in addition to the petition. In this case, all the materials were readily
available from the sentencing court’s publically available electronic docket.

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IT IS SO ORDERED.
Entered this 6th day of November, 2017.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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