Dismuke v. Walton

Filing 5

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. IT IS HEREBY ORDERED that respondent shall answer or otherwise plead within thirty days of the date this order is entered. Signed by Chief Judge David R. Herndon on 10/29/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SIR DOUGLAS D. DISMUKE, # 12375-424,
Petitioner,
vs.

Case No. 13-cv-1045-DRH

JEFFREY S. WALTON,
Respondent.

MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner, currently incarcerated in the United States Penitentiary at
Marion, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the constitutionality of his sentence.

The petition was filed on

October 7, 2013.
Petitioner claims that in light of the Seventh Circuit’s recent decision in
United States v. Miller, 721 F.3d 435 (7th Cir. 2013), his Illinois felony
conviction for possession of a sawed-off shotgun should not have been
considered a “crime of violence” for the purpose of enhancing his federal
sentences under the Armed Career Criminal Act.

Petitioner pled guilty to

armed robbery in the Northern District of Illinois in two cases, and was
sentenced to concurrent 252-month sentences in each, based in part on the
sawed-off shotgun conviction. United States v. Dismuke, Case No. 03-cr-50010
(N.D. Ill. May 1, 2003); United States v. Dismuke, Case No. 02-cr-50061 (N.D.
Ill. May 1, 2003).
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Since his sentencing, petitioner has raised numerous challenges to the
enhanced sentence, to no avail. However, circuit law has now changed with
regard to whether mere possession of a sawed-off shotgun constitutes a violent
felony for sentence enhancement purposes.

Petitioner argues that this

development brings his claim within the “savings clause” of 28 U.S.C. § 2255(e)
such that he may seek relief under 28 U.S.C. § 2241.
Without commenting on the merits of petitioner’s claims, the Court
concludes that the petition survives preliminary review under Rule 4 and Rule
1(b)1 of the Rules Governing Section 2254 Cases in United States District
Courts.
IT IS HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this order is entered.

This preliminary

order to respond does not, of course, preclude the Government from raising
any objection or defense it may wish to present.

Service upon the United

States Attorney for the Southern District of Illinois, 750 Missouri Avenue, East
St. Louis, Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to a United States Magistrate Judge for further pre-trial
proceedings. Petitioner’s motion requesting the appointment of counsel (Doc.
2) is also referred to the magistrate judge for consideration.

1

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas

corpus cases.

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IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven (7) days after a transfer or other change in address occurs. Failure
to provide such notice may result in dismissal of this action. See FED. R. CIV.
P. 41(b).

David R.
Herndon
2013.10.29
14:11:27 -05'00'

IT IS SO ORDERED.
DATED: October 29, 2013

Chief Judge
United States District Court

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