Rendon-Martinez v. Werlich

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 5/11/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DOROTEO RENDON-MARTINEZ,
No. 09999-280,
Petitioner,
vs.

Case No. 16-cv-00415-DRH

T.G. WERLICH,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Doroteo Rendon-Martinez is currently incarcerated in the
Greenville Federal Correctional Institution, located within this judicial district. In
2010, following a bench trial in the U.S. District Court for the Western District of
Oklahoma, Rendon-Martinez was found guilty of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and illegal re-entry
by an alien, in violation of 8 U.S.C. § 1326(a). He was found to qualify as an
armed career criminal under 18 U.S.C. § 924(e)(1), the Armed Career Criminal
Act (“ACCA”). Consequently, he was subjected to a mandatory minimum sentence
of 15 years (180 months).

Rendon-Martinez was sentenced to 15-year terms of

imprisonment on each charge, with the sentences to run concurrently. See United

States v. Rendon-Martinez, Case No. 10-cr-95-C (W.D. OK 2010).

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Citing the Supreme Court’s recent ruling in Johnson v. United States,
__U.S. __, 135 S. Ct. 2551, 2557 (2015), petitioner Rendon-Martinez brings this
habeas corpus action pursuant to 28 U.S.C. § 2241, challenging his sentence.
The petition is now before the Court for review under Rules 1(b) and 4 of the
Rules Governing Section 2254 Cases in United States District Courts.
Rule 4 of the Rules Governing Section 2254 Cases in United States District
Courts provides that upon preliminary consideration by the district court judge,
“[i]f it plainly appears from the petition and any attached 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.
Discussion
Under the ACCA, a person convicted under 18 U.S.C. § 922(g)—such as
petitioner Rendon-Martinez—is subject to an increased sentence if he or she has
three previous convictions for a violent felony or a serious drug offense, or both.
18 U.S.C. § 922(e)(1). The ACCA defines “violent felony” as any crime punishable
by imprisonment for a term exceeding one year that (i) has as an element the use,
attempted use, or threatened use of physical force against the person of another,
or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to
another. 18 U.S.C. § 924(e)(2)(B).

The italicized clause is referred to as the

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“residual clause.”

The ACCA provides for a 15-year mandatory minimum

sentence.
As noted above, petitioner was sentenced as an armed career criminal. He
unsuccessfully appealed his sentence (United States v. Rendon-Martinez, No. 106231 (10th Cir. 2011). One of the arguments on direct appeal pertained to the
ACCA and whether the relevant three prior serious drug offenses were not
mentioned in the indictment, and whether those offenses had been sufficiently
proved to have occurred at different occasions from one another. A subsequent
motion attacking his sentence pursuant to 28 U.S.C. § 2255 also failed (Martinez

v. United States, Case No. 12-cv-388-C (W.D. OK 2012). The Section 2255 motion
did not pertain to the ACCA.
The Supreme Court held in Johnson v. United States, __U.S. __, 135 S. Ct.
2551, 2557 (Jun. 26, 2015), that, relative to the ACCA, imposition of an enhanced
sentence under the so-called “residual clause” (18 U.S.C. § 924(e)(2)(B)(ii))
violates due process because the vagueness of the clause “denies fair notice to
defendants and invites arbitrary enforcement by judges.” Id.,135 S.Ct. at 2557.
Relying

on

Johnson,

petitioner

argues

that

his

enhanced

sentence

is

unconstitutional—an argument that arguably could not have been presented in his
previous appeal and Section 2255 motion. 1
Ordinarily, a person may challenge his federal conviction and sentence only
by means of a motion brought before the sentencing court pursuant to 28 U.S.C. §

1

Although it doesn’t appear that petitioner was sentenced under the residual clause, because his
petition is premised upon Johnson the Court need not dwell on that point, for reasons that follow.
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2255, and this remedy normally supersedes the writ of habeas corpus. A Section
2241 petition by a federal prisoner is generally limited to challenges to the actual
execution of the sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998); Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Federal prisoners
may utilize Section 2241, however, to challenge the legality of a conviction or
sentence in cases pursuant to the “savings clause” of Section 2255(e). 28 U.S.C. §
2255(e).
The savings clause allows a petitioner to bring a claim under Section 2241
where he can show that a remedy under Section 2255 is inadequate or ineffective
to test the legality of his detention. 28 U.S.C. § 2255(e); see also United States v.

Prevatte, 300 F.3d 792, 798–99 (7th Cir. 2002).

“‘Inadequate or ineffective’

means that ‘a legal theory that could not have been presented under [Section]
2255 establishes the petitioner’s actual innocence.’” Hill v. Werlinger, 695 F.3d
644, 648 (7th Cir. 2012) (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir.
2002); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998)).
The Court of Appeals for the Seventh Circuit has held that Section 2255 is
only inadequate or ineffective when three requirements are satisfied: (1) the
petitioner relies on a new case of statutory interpretation rather than a
constitutional decision; (2) the case was decided after his first Section 2255
motion but is retroactive; and (3) the alleged error results in a miscarriage of
justice. See Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012).

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Since Johnson was published, the law has been evolving, but on August 4,
2015, the Seventh Circuit specifically concluded that Johnson announced a new
substantive rule of constitutional law that is retroactively applicable in a collateral
attack on a final conviction. Price v. United States, 795 F.3d 731, 732-35 (7th
Cir. 2015) (authorizing District Court to consider second or successive
Section 2255 motion seeking relief under Johnson relative to an ACCA sentence).

Price indicates that a motion filed pursuant to Section 2255 is the primary vehicle
for seeking relief under Johnson.

Thus, based on controlling precedent,

petitioner’s argument for why Section 2255 is an inadequate remedy evaporated
when Price was published. Any remaining doubt was dispelled recently when the
Supreme Court held in Welch v. United States, __U.S.__, 136 S. Ct. 1257, 1265,
1268 (April 18, 2016), that Johnson is a substantive decision (not a statutory
interpretation case) that is retroactive in cases on collateral review. Consequently,
petitioner cannot utilize Section 2241 to present his arguments; instead, he must
utilize Section 2255.
This Court cannot re-characterized the Section 2241 petition as a Section
2255 motion.

In Collins v. Holinka, 510 F.3d 666, 667 (7th Cir. 2007), the

Seventh Circuit held that “judges must respect the plaintiff’s choice of statute to
invoke-whether § 2241, § 2255, or 42 U.S.C. § 1983-and give the action the
treatment appropriate under that law.” Consequently, Rendon-Martinez’s Section
2241 petition will be dismissed with prejudice.

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If petitioner decides to pursue relief under Section 2255, he is advised that
because he previously filed a Section 2255, he, like the petitioner in Price, would
need to seek permission to file a second or successive Section 2255 motion with
the federal Court of Appeals of the circuit in which he was sentenced—the Tenth
Circuit.

See 28 U.S.C. § 2244(b)(3).

This Court expresses no opinion as to

whether, in light of Welch, the Tenth Circuit would grant petitioner leave to file a
second or successive Section 2255 motion, or whether petitioner would ultimately
be entitled to relief under Johnson.
It is very important to note that 28 U.S.C. 2255(f)(3) requires that a Section
2255 motion relying on a newly-recognized right must be filed within one year
from “the date on which the right asserted was initially recognized by the
Supreme Court….”

Johnson was decided by the Supreme Court on June 26,

2015. Further, the one-year period prescribed by 2255(f)(3) runs from the date of
the Supreme Court’s ruling initially recognizing the right asserted, and not from
the date the newly recognized right was found to be retroactive. Dodd v. United

States, 545 U.S. 353, 357-59 (2005).
IT IS HEREBY ORDERED that petitioner Rendon-Martinez’s Section 2241
petition (Doc. 1) is DISMISSED with prejudice.

The Clerk is DIRECTED to

close this case and enter judgment accordingly.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within sixty days of the entry of judgment. FED.R.APP.P. 4(a)(1)(B).
A motion for leave to appeal in forma pauperis should set forth the issues

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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 in forma pauperis, he will be
required to pay a portion of the $505.00 appellate filing fee in order to pursue his
appeal (the amount to be determined 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). A timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the appeal deadline. See FED.R.APP.P. 4(a)(4) (listing
motions that alter the time for filing an appeal).
It is not necessary for petitioner to obtain a certificate of appealability.

Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir. 2000).

Digitally signed by
Judge David R.
Herndon
Date: 2016.05.11
10:13:04 -05'00'

IT IS SO ORDERED.
Dated: May 11, 2016

United States District Judge

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