Newbern v. USA

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Chief Judge David R. Herndon on 8/1/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMELL C. NEWBERN,
No. 05169-025,
Petitioner,
vs.

Case No. 14-cv-803-DRH

UNITED STATES of AMERICA,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner Jamell C. Newbern, currently incarcerated in the FCI-Greenville,
brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the
constitutionality of his sentence. He is serving a 300-month sentence imposed by
the undersigned Judge on December 7, 2005, following his guilty plea to
possession with intent to distribute a mixture or substance containing cocaine
base, in violation of 21 U.S.C. § 841(a)(1). United States v. Newbern, Case No.
05-cr-30071-DRH (S.D. Ill.). In the instant petition, Newbern argues (again) that
he should be resentenced because he no longer should be considered a career
offender under current law.
This case is now before the Court for a preliminary review of the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts. Rule 4 provides that upon preliminary consideration by the
district court judge, “[i]f it plainly appears from the petition and any attached

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exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.” Rule 1(b)
of those Rules gives this Court the authority to apply the rules to other habeas
corpus cases, such as this action under 28 U.S.C. § 2241.

After carefully

reviewing the petition, the Court concludes that this action is subject to dismissal.
I.

Background

Prior to being charged with the instant drug offense, petitioner had been
convicted in state court of reckless discharge of a firearm. This Court in 2005
classified that conviction as a “crime of violence” which, along with a prior
conviction for aggravated battery, meant that petitioner should be sentenced as a
“career offender” under U.S.S.G. § 4B1.1. Petitioner’s advisory guideline range
was 262-327 months, based on a total offense level of 34 and a criminal history
category of VI.
At sentencing, and again on appeal, petitioner argued that the prior
conviction for reckless discharge of a firearm should not have been considered a
crime of violence, and he should not have been labeled as a career offender for
sentencing purposes. On March 13, 2007, the Court of Appeals for the Seventh
Circuit rejected that argument and affirmed petitioner’s sentence. United States
v. Newbern, 479 F.3d 506 (7th Cir. 2007).
On January 27, 2010, petitioner filed a motion to vacate, set aside, or
correct his sentence, pursuant to 28 U.S.C. § 2255. Newbern v. United States,
Case No. 10-cv-64-DRH.

He again challenged the classification of the reckless

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discharge of a firearm conviction as a crime of violence, based on the April 16,
2008, decision in Begay v. United States, 553 U.S. 137 (2008), and Chambers v.
United States, 555 U.S. 122 (2009). After considering the government’s response
and additional arguments from both parties, the Court determined that the
§ 2255 motion was untimely, and dismissed it with prejudice on December 26,
2012 (Doc. 16 in Case No. 10-cv-64). Although the reckless-discharge conviction
was indeed no longer a crime of violence in light of Begay and Chambers,
petitioner had filed his § 2255 motion well outside the one-year time limit that
began when the Supreme Court issued the Begay opinion. Further, his claim that
nobody advised him that the Begay case may have changed the law in his favor
did not entitle him to equitable tolling of the deadline.
Finally, the Court noted that petitioner’s 300-month (25-year) sentence was
well within the statutory term of imprisonment of 20 years to life. 1 21 U.S.C.
§§ 841(b)(1)(A), 851.

The Court confirmed that given petitioner’s criminal

history, even if his § 2255 motion had resulted in a remand for resentencing
without the career offender provision, the Court would impose the same 300month sentence on remand.

Both this Court and the Seventh Circuit denied

petitioner’s application for a certificate of appealability.
II.

The Petition

In the instant petition, Newbern once again argues that his sentence was
imposed in violation of Begay v. United States, 533 U.S. 137 (2009), because he
1

Petitioner had a prior state conviction for felony drug possession, which triggered the
higher statutory minimum and maximum under § 841(b)(1). United States v.
Newbern, 479 F.3d 506, 507 (7th Cir. 2007).
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was improperly designated as a career criminal based on the reckless discharge
of a firearm conviction. He relies on a recent Supreme Court decision, McQuiggin
v. Perkins, 133 S. Ct. 1924 (2013), which had not been issued at the time he
appealed or brought his motion under § 2255. McQuiggin held that proof of a
habeas petitioner’s actual innocence could allow him to overcome the bar of an
expired statute of limitations under 28 U.S.C. § 2244(d)(1). The Court clarified
that “a federal habeas court, faced with an actual-innocence gateway claim, should
count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier
to relief, but as a factor in determining whether actual innocence has been reliably
shown.” McQuiggin, 133 S. Ct. at 1928. At the same time, the Court noted that
“tenable actual-innocence gateway pleas are rare[.]” Id. (citing Schlup v. Delo, 513
U.S. 298 (1995)).
Petitioner argues that McQuiggin should be applied retroactively, and in
effect removes the statutory time bar for an actual innocence claim (Doc. 1, p. 10,
17-19).

Therefore, his claim that he is “actually innocent” of being a career

criminal under the sentencing guidelines should be cognizable in this proceeding.
III.

Discussion

As a general matter, “28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide
federal prisoners with distinct forms of collateral relief. Section 2255 applies to
challenges to the validity of convictions and sentences, whereas § 2241 applies to
challenges to the fact or duration of confinement.” Hill v. Werlinger, 695 F.3d
644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir.

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2000)). See also Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998). Because petitioner herein is
attacking the validity of his sentence, a § 2255 motion is the proper avenue for
relief.
Under very limited circumstances, a prisoner may employ § 2241 to
challenge his federal conviction or sentence.

28 U.S.C. § 2255(e) contains a

“savings clause” which authorizes a federal prisoner to file a § 2241 petition
where the remedy under § 2255 is “inadequate or ineffective to test the legality of
his detention.” 28 U.S.C. § 2255(e). See Hill, 695 F.3d at 648 (“‘Inadequate or
ineffective’ means that ‘a legal theory that could not have been presented under §
2255 establishes the petitioner's actual innocence.’”) (citing Taylor v. Gilkey, 314
F.3d 832, 835 (7th Cir. 2002)). See also United States v. Prevatte, 300 F.3d
792, 798-99 (7th Cir. 2002). The fact that petitioner may be barred from bringing
a second/successive § 2255 petition is not, in itself, sufficient to render it an
inadequate remedy.

In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998)

(§ 2255 limitation on filing successive motions does not render it an inadequate
remedy for a prisoner who had filed a prior § 2255 motion). Instead, a petitioner
under § 2241 must demonstrate the inability of a § 2255 motion to cure the defect
in the conviction.

“A procedure for postconviction relief can be fairly termed

inadequate when it is 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 nonexistent offense.” Davenport, 147 F.3d at

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611.
The Seventh Circuit has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. First, he
must show that he relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on a decision that he
could not have invoked in his first § 2255 motion, and that case must apply
retroactively. Lastly, he must demonstrate that there has been a “fundamental
defect” in his conviction or sentence that is grave enough to be deemed a
miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
See also Brown v. Rios, 696 F3d 638, 640 (7th Cir. 2012).
Petitioner’s reliance on McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), does
not bring his claim within the savings clause. McQuiggin did not change the law
in such a way that rendered petitioner “actually innocent” of being a career
criminal under the guidelines – that change in statutory interpretation was
announced by the Supreme Court in Begay v. United States, 553 U.S. 137
(2008). Petitioner seeks to use the holding in McQuiggin to get a second chance
at raising the Begay argument that he brought in his untimely § 2255 motion, by
arguing that his “actual innocence” claim should not have been barred by the oneyear time limit.

But this Court already considered the issue of tardiness

addressed later in McQuiggin, when it examined whether petitioner’s delay in
bringing his Begay claim should entitle him to equitable tolling of the one-year
limit. The McQuiggin Court noted that “unjustified delay” in bringing an actual

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innocence claim is a legitimate factor in determining whether an actual innocence
claim should be allowed to proceed after the limitations period has run.
McQuiggin, 133 S. Ct. at 1928.

Ultimately, the record in McQuiggin

demonstrated that the habeas petitioner there had “failed to diligently pursue his
rights,” and he thus was not entitled to bring his claim. Id. Petitioner Newbern
similarly did not show diligence or any circumstances that would justify tolling of
the time limit for bringing his Begay claim within § 2255.
Under any analysis, it cannot be said that the § 2255 procedure is
structurally inadequate or ineffective to allow petitioner to bring his claim.
Clearly, his Begay argument could have been considered in his § 2255 motion if
he had brought it within one year of the date of the Begay opinion. Thus, he fails
to satisfy the second condition to invoke the savings clause – that he is relying on
a decision and legal theory that he could not have invoked in his first § 2255
motion.
Finally, petitioner’s argument that his case is distinguishable from the
Seventh Circuit’s decision in Hawkins v. United States, 706 F.3d 820 (7th Cir.
2013), opinion supplemented on denial of reh’g, 724 F.3d 915 (7th Cir. 2013), is
unavailing. Hawkins had originally been sentenced as a career offender at a time
when the sentencing guidelines were mandatory.

After the Supreme Court

declared in United States v. Booker, 543 U.S. 220 (2005), that the guidelines
were advisory only, his case was remanded for resentencing. On remand, the trial
judge imposed the same 151-month sentence as he had before. Three years later,

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the Supreme Court’s decision in Chambers v. United States, 555 U.S. 122
(2009), established that Hawkins’ predicate escape crimes no longer qualified as
“violent felonies,” meaning that he should not have been sentenced as a career
offender. Hawkins, 706 F.3d at 822. Hawkins filed a timely § 2255 motion, but
the Seventh Circuit concluded that he was not entitled to relief. Hawkins had
been resentenced to a term below the statutory maximum sentence for his offense,
and at the time of resentencing, the trial court was well aware that the sentencing
guidelines (which included the career-offender enhancement) were advisory only.
Further, upon post-conviction review, the trial judge confirmed that he had
appropriately considered Hawkins’ long criminal history, and that the sentence
was reasonable “even without application of the § 4B1.1 career offender
enhancement.” Hawkins, 706 F.3d at 823.
Petitioner’s case, aside from the fact that his § 2255 petition was untimely,
presents nearly identical issues as the appellate court considered in Hawkins.
His 300-month sentence was clearly within the statutory guideline range of 20
years to life, and was at the lower end of that wide range. Any error would be
found only in the calculation of the advisory guideline which incorporated the
career criminal enhancement. As the Seventh Circuit observed, “[a]n error in the
interpretation of a merely advisory guideline is less serious [than a sentence that
exceeds the statutory maximum]. Given the interest in finality, it is not a proper
basis for voiding a punishment lawful when imposed.”

Hawkins, 706 F.3d at

824. As noted above, the undersigned Judge emphasized in petitioner’s § 2255

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proceeding that even if he were required to resentence petitioner without reference
to the career offender enhancement, he would impose the same 300-month
sentence because of petitioner’s criminal history (Doc. 16, p. 15, Case No. 10-cv64-DRH). The sentence was lawful, just, and reasonable under the circumstances
of this case, and it was within the discretion of the Court to impose this term.
The record in this case does not demonstrate any “fundamental defect” in the
sentence that could be deemed a miscarriage of justice. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013).
The petition does not present any basis to bring this case within the savings
clause of § 2255(e), and shall be dismissed.
IV.

Disposition

To summarize, petitioner has not demonstrated that § 2255 is an
inadequate remedy for his current claims, and consistent with In re Davenport,
petitioner cannot raise these claims through a § 2241 petition. Davenport, 147
F.3d 605 (7th Cir. 1998). Accordingly, the petition is summarily DISMISSED
with prejudice.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4).
A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal.

See FED. R. APP. P. 24(a)(1)(C).

If

petitioner does choose to appeal and is allowed to proceed IFP, he will be liable
for a portion of the $505.00 appellate filing fee (the amount to be determined

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based on his prison trust fund account records for the past six months)
irrespective of the outcome of the appeal.

See FED. R. APP. P. 3(e); 28 U.S.C.

§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan
v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d
464, 467 (7th Cir. 1998). A timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline.2

It is not necessary for

petitioner to obtain a certificate of appealability from this disposition of his
§ 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
Signed this 1st day of August, 2014.

David R.
Herndon
2014.08.01
15:09:19 -05'00'
Chief Judge
United States District Court

2

A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment. FED. R. CIV. P. 59(e).
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