Howliet v. Kallis

Filing 6

ORDER AND OPINION entered by Chief Judge James E. Shadid on 9/27/18. Respondent Kallis' Motion to Dismiss 3 is GRANTED and Petitioner Howliet's Petition 1 is DISMISSED without prejudice. This matter is now terminated.SEE FULL WRITTEN ORDER. (FDS, ilcd)

E-FILED

Thursday, 27 September, 2018 02:26:38 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
GERALD HOWLIET,
Petitioner,
v.
STEVE KALLIS, Warden,
Respondent.

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Case No. 17-cv-01490-JES

ORDER AND OPINION
Now before the Court is Respondent Kallis’ Motion to Dismiss [3] Petitioner Howliet’s
Petition for Writ of Habeas Corpus [1] pursuant to 28 U.S.C. § 2241. For the reasons set forth
below, the Motion to Dismiss [3] is GRANTED and the Petition [1] is DISMISSED.
BACKGROUND
Petitioner was convicted in the United States District Court for the Southern District of
Illinois of possession with intent to distribute cocaine base and heroin in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and (b)(1)(C), and with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). See United States v. Farmer, 543 F.3d 363, 376 (7th Cir. 2008).
At sentencing, Petitioner’s prior felony drug convictions resulted in the enhancement of his
sentence to a mandatory life sentence. Doc. 1, p. 3; see 18 U.S.C. § 922(g), 18 U.S.C. § 924(e).
He now files this § 2241 petition challenging the two state court drug convictions upon which the
enhancement of his sentence was predicated. Id. This Order follows.
LEGAL STANDARD
Generally, federal prisoners who seek to collaterally attack their conviction or sentence
must proceed by way of motion under 28 U.S.C. § 2255, the so-called “federal prisoner’s
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substitute for habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368, at *1 (7th Cir.
Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). The exception to this
rule is found in § 2255 itself: a federal prisoner may petition under § 2241 if the remedy under
§ 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
Under the “escape hatch” of § 2255(e), “[a] federal prisoner should be permitted to seek habeas
corpus only if he had no reasonable opportunity to obtain earlier judicial correction of a
fundamental defect in his conviction or sentence because the law changed after his first 2255
motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Thus, the Seventh Circuit has held
that “alternative relief under § 2241 is available only in limited circumstances: specifically, only
upon showing that (1) the claim relies on a new statutory interpretation case; (2) the petitioner
could not have invoked the decision in his first § 2255 motion and the decision applies
retroactively; and (3) there has been a fundamental defect in the proceedings that is fairly
characterized as a miscarriage of justice.” Montana v. Cross, 829 F.3d 775, 779 (7th Cir.
2016), cert. denied sub nom. Montana v. Werlich, 137 S. Ct. 1813, 197 L. Ed. 2d 758 (2017).
DISCUSSION
The sole defect Petitioner claims exists with regard to his sentence is that the two state
court drug convictions should not have qualified for the enhancement. Petitioner claims that
those two convictions are invalid because the statute cited in the indictments during those cases
listed the incorrect year; they read “ILCS 1992,” when in fact the relevant compilation of Illinois
statutes went into effect in January of 1993. Doc. 1, pp. 4–5.The two state actions Petitioner
refers to were charged in 1994 and 1996, and Petitioner was convicted by guilty plea in 1995 and
1997 respectively. Doc. 1, Exh. B. The compilation of Illinois statutes that went into effect in

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1993 did not alter any of the internal statutes, but only reorganized them with respect to one
another. Doc. 1, p. 38.
As stated above, federal prisoners are generally only able to challenge convictions and
sentences by using § 2255. See Brown, 696 F.3d at 640. However, they may resort to § 2241
actions if the § 2255 motion would be “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). The Seventh Circuit has defined “inadequacy” in this context to
mean “so configured as to deny a convicted defendant any opportunity for judicial rectification
of so fundamental a defect in his conviction as having been imprisoned for a non-existent
offense.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).
Petitioner does not explain why he did not mention the state court convictions in his
previous § 2255 motion, which was denied in 2010. Howliet v. United States, 2010 WL 5441685
(S.D. Ill. 2010). For that matter, Petitioner also fails to explain why he did not raise this issue at
sentencing or on direct appeal. Petitioner claims that a second or successive § 2255 motion at
this time would be an inadequate remedy because the standards for second or successive
petitions do not allow him to assert this claim. Doc. 1, p. 2. His claim is that he was convicted
under a statute that does not exist. Doc. 1, p. 4. Petitioner has concluded that the reference to
“ILCS 1992” on the indictment “invalidated the statutory provision under which they secured an
indictment and conviction.” Doc. 1, p. 6. This is incorrect. The legal effect of the underlying
statutes (720 ILCS 570/402(c) and 720 ILCS 550/4(d)) was unchanged by the reorganization into
the 1993 compilation, and in any event, Petitioner was charged no sooner than 1994; even if
there were any differences between the compilation in effect in 1992 compared to 1993 (rather
than a simple typographical error), it would have had no bearing on either of Petitioner’s
convictions, which in turn means his sentencing enhancement would remain unchanged. As

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such, even if all of Petitioner’s factual claims were accurate, he would not be entitled to relief
under § 2241.
Petitioner cannot fulfill the first prong of In re Davenport because he has not indicated
that there has been any retroactive change in the law. He has pointed to no new evidence, no
change in the law, and no miscarriage of justice. He is therefore not entitled to proceed under
§ 2241, and his Petition is dismissed without prejudice.
CONCLUSION
For the reasons set forth above, Respondent Kallis’ Motion to Dismiss [3] is GRANTED
and Petitioner Howliet’s Petition [1] is DISMISSED without prejudice. This matter is now
terminated.
Signed on this 27th day of September, 2018.
/s James E. Shadid
James E. Shadid
Chief United States District Judge

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