Gatch v. Walton

Filing 8

ORDER REOPENING CASE, REFERRING CASE to Magistrate Judge Clifford J. Proud. The Order of Dismissal (Doc. 3) and Judgment (Doc. 4) are hereby VACATED. Signed by Judge David R. Herndon on 5/26/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RUSSEL NEIL GATCH,
No. 12597-078
Petitioner,
vs.
JEFFREY S. WALTON,
Respondent.

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Case No. 14-cv-01076-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Russel Neil Gatch is currently incarcerated in the United States
Penitentiary at Marion, Illinois. Proceeding pro se, Gatch filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the enhancement of
his sentence under United States Sentencing Guidelines (“U.S.S.G.”) Section
4B1.5(a) for being a repeat and dangerous sex offender.
In accordance with Rule 4 of the Federal Rules Governing Section 2254
Cases in United States District Courts, the petition was dismissed upon
preliminary review and final judgment was entered (Docs. 3, 4). Gatch is now
before the Court pursuant to Federal Rule of Civil Procedure 59(e), seeking to
alter or amend the judgment (Doc. 5). Out of an abundance of caution, for the
reasons that follow the motion is GRANTED and the order of dismissal and
corresponding judgment shall be VACATED.

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Procedural History
In 2007, in the United States District Court for the Eastern District of
Texas, Gatch pleaded guilty to Attempted Enticement of a Person Under the Age of
18 to Engage in Criminal Sexual Activity, in violation of 18 U.S.C. § 2422(b). See

United States v. Gatch, Case No. 06-cr-167 (E.D. Tex. 2007). He was sentenced to
a term of 240 months imprisonment.

Gatch’s sentence was enhanced under

U.S.S.G Section 4B1.5(a) for being a repeat and dangerous sex offender, based on
prior convictions under Louisiana law for oral sexual battery (La.R.S. 14:43.3(A))
and aggravated oral sexual battery (La.R.S. 14:27(A), 14:43.4(A)(4)). No direct
appeal was taken.
A subsequent motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255 was filed, arguing that Gatch was denied effective assistance of
counsel relative to, among other things, the decision to enter a guilty plea and the
calculation of his criminal history (a U.S.S.G. 4B1.5 factor). The Section 2255
motion was denied as untimely. See Gatch v. United States, Case No. 09-cv-770,
2012 WL 1867035 (E.D.Tex. 2012). No appeal was taken.
In March 2014, Gatch filed a Section 2241 petition for writ of habeas
corpus challenging his conviction and whether his admitted conduct had actually
violated 18 U.S.C. § 2422(b). See Gatch v. Walton, Case No. 13-cv-247-DRH (S.D.
Ill. Apr. 9, 2013). The petition was dismissed because Gatch had failed to show a
structural defect in Section 2255 that rendered it an in adequate remedy, and he

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had failed to show he was actually innocent under the correct understanding of
the statute of conviction. No appeal was taken.
The Habeas Petition
Gatch’s present Section 2241 petition rests upon the United States
Supreme Court’s decision in Descamps v. United States, 570 U.S. ___, 133 S. Ct.
2276, 186 L. Ed. 2d 438 (June 20, 2013), which was published after his Section
2255 motion and first Section 2241 petition were decided. He also names and
relies upon, but does not cite to, Shepard v. United States, 544 U.S. 13 (2005),
which was decided before he was convicted, and upon which Descamps was
based.
In Descamps the Supreme Court held that sentencing courts may not apply
a “modified categorical approach” and consider additional documents to
determine if a conviction is a “violent felony” under the Armed Career Criminal
Act (18 U.S.C. § 924(e)) when the crime of conviction has a “single, indivisible set
of elements.”

Descamps, 133 S.Ct. at 2281–82; see also United States v.

McDonald, 592 F.3d 808, 810 (7th Cir. 2010) (explaining that the modified
categorical approach is permitted when a statute creates more than one crime or
modes of commission, not all of which qualify as a predicate offense under the
Armed Career Criminal Act and the court must determine which crime formed
the basis of the defendant’s conviction). According to Shepard, the sentencing
court “is generally limited to examining the statutory definition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit

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factual finding by the trial judge to which the defendant assented.” Shepard, 544
U.S. at 16.
Petitioner asserts that he may bring this claim under the “savings clause” of
28 U.S.C. § 2255(e) because Descamps establishes that he is actually innocent of
this non-qualifying enhancement. He further argues that a miscarriage of justice
has occurred, warranting use of the savings clause. See In re Davenport, 147
F.3d 605 (7th Cir.1998); Webster v. Daniels, No. 14-1049, 2015 WL 1951921, at
*12 (7th Cir. May 1, 2015). More specifically, he contends the record in his case
does not make clear which aspect of the divisible statutes his sentenced was
premised upon (see La.R.S. (1996) 14:43.3(A); 14:43.4(A)(4)). He further asserts
that no Shepard-qualifying documents were used to determine his sentence.
Discussion
Federal Rule of Civil Procedure 59(e) permits a court to amend a judgment
only if the movant demonstrates a manifest error of law or presents newly
discovered evidence that was not previously available. See Sigsworth v. City of

Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007).
In dismissing the petition, the Court stated that, although it is a new
statutory interpretation case, Descamps does not represent a change in the law
that has any relevance to Gatch’s circumstances, in that Descamps specifically
pertained to U.S.S.G. Section 4B1.4, not 4B1.5.

Gatch is correct, that was an

overstatement. See, e.g., United States v. Sebolt, 554 Fed. Appx. 200, 207 (4th
Cir. 2014) (applying Descamps to U.S.S.G. § 4B1.5). Nevertheless, the Court’s

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principal rationale for dismissing the petition remains sound: Descamps is not a
retroactive decision. Descamps reiterated the “categorical approach” analysis
outlined in Taylor v. United States, 495 U.S. 575 (1990), which has been the rule
since well before petitioner’s conviction and sentencing. Moreover, “[t]o date, the
Supreme Court has not made Descamps retroactive on collateral review.” Groves

v. United States, 755 F.3d 588, 593 (7th Cir. 2014). With that said, a response to
the petition will allow for a full vetting of the issues, in particular, which aspect of
Section 924(e)(2) was relied upon, and whether all of the aspects of the statutes at
issue qualify as predicate offenses under Section 924(e).

See McDonald, 592

F.3d at 810. 1
IT IS THEREFORE ORDERED that, for the reasons stated, petitioner
Russel Neil Gatch’s Rule 59(e) motion (Doc. 5) is GRANTED. Accordingly, the
Order of Dismissal (Doc. 3) and Judgment (Doc. 4) are hereby VACATED. The
Clerk of Court is DIRECTED to reopen this action. Transmission of this Order
renders Gatch’s motion for copies (Doc. 7) MOOT.
IT IS HEREBY ORDERED that Respondent shall answer the petition or
otherwise plead within thirty days of the date this order is entered. This
preliminary order to respond does not, of course, preclude the State from making

1

There is a suggestion in the record that the terms of Gatch’s plea agreement may
waive his right to bring this action, but that is an affirmative defense that is not
properly before the Court.
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whatever waiver, exhaustion or timeliness 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 United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Clifford J. Proud 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 days after a transfer or other change in address occurs.
IT IS SO ORDERED.
Signed this 26th day of May, 2015.

Digitally signed by
David R. Herndon
Date: 2015.05.26
09:46:34 -05'00'
United States District Judge

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