Johnson v. Werlich

Filing 3

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 7/22/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SEDGWICK JOHNSON,
#20463-424,
Petitioner,
vs.

Case No. 16-cv-724-DRH

T.G. WERLICH,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Sedgwick Johnson, who is currently incarcerated in the Federal
Correctional Institution in Greenville, Illinois (“FCI-Greenville”), brings this
habeas corpus action pursuant to 28 U.S.C. § 2241. Petitioner challenges his
enhanced sentence as a career offender following his conviction for three drugrelated crimes in the United States District Court for the Northern District of
Illinois. See United States v. Cooper, No. 01-cr-00543-3 (N.D. Ill. 2001). He seeks
resentencing.
This matter is now before the Court for review of the § 2241 petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District
Courts, which 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
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this Court the authority to apply the rules to other habeas corpus cases.
The Petition (Doc. 1) does not survive preliminary review under this standard and
shall be dismissed.
I.

Background

On July 21, 2001, a federal grand jury charged petitioner and two codefendants with one count of conspiracy to possess with intent to distribute crack
cocaine and powder cocaine in violation of 21 U.S.C. § 846, one count of
possession with intent to distribute powder cocaine in violation of 21 U.S.C.
§ 841(a)(1), and one count of possession with intent to distribute crack cocaine in
violation of 21 U.S.C. § 841(a)(1). See United States v. Cooper, No. 01-cr-00543-3
(N.D. Ill. 2001) (“criminal case”) (Doc. 17). Following a jury trial, all three
defendants were found guilty of all three counts on October 22, 2002. (Doc. 84,
criminal case). On January 30, 2003, petitioner was sentenced to a term of 360
months’ imprisonment followed by a five-year term of supervised release.
(Doc. 112, criminal case).
Petitioner filed a timely appeal to the Seventh Circuit Court of Appeals.
(Doc. 105, criminal case). On May 4, 2005, the Seventh Circuit ordered a limited
remand for reconsideration of his sentence in light of United States v. Booker,
543 U.S. 220 (2005), and United States v. Paladino, 401 F.3d 471 (7th Cir.
2005). (Doc. 144, criminal case). After considering the matter, the District Court
advised the Seventh Circuit that it would impose the same sentence, and on
June 1,

2007,

the

Seventh

Circuit

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affirmed

petitioner’s

sentence.

See United States v. Johnson, 240 F. App’x 131 (7th Cir. 2007); (Doc. 160,
criminal case).
Petitioner next filed a petition for writ of certiorari to the United States
Supreme Court. On February 12, 2008, the Supreme Court vacated the judgment
and remanded the case to the Seventh Circuit for further consideration of the
sentence in light of Kimbrough v. United States, 552 U.S. 85 (2007). See Johnson

v. United States, 552 U.S. 1091 (2008). In turn, the Seventh Circuit remanded the
case to the District Court with instructions to advise it whether petitioner’s
sentence would have been different if the District Court had known that it had
discretion to deviate from the career offender guidelines after determining that the
crack/powder disparity imposed by the Sentencing Guidelines yielded a sentence
greater than necessary to achieve § 3553(a)’s purposes. United States v. Johnson,
No. 13-1322 (7th Cir. Apr. 26, 2013); (Doc. 191, criminal case). The District
Court again concluded that it would impose the same sentence, if the case was
remanded for resentencing. (Doc. 196, criminal case). On October 25, 2013, the
Seventh Circuit affirmed. United States v. Johnson, 535 F. App’x 534 (7th Cir.
2013); (Doc. 198, criminal case).
Petitioner filed a timely motion to vacate, set aside of correct sentence
under 28 U.S.C. § 2255 on April 14, 2014. See Johnson v. United States, No. 14cv-02917 (N.D. Ill. 2014) (“collateral review”). In the § 2255 motion, petitioner
argued that his conviction and sentence should be vacated because his trial
counsel was ineffective and the court improperly categorized him as a career

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offender under the Sentencing Guidelines. With respect to his latter argument, the
District Court stated:
Johnson’s final claim, and his only claim that does not relate to the
performance of his counsel, is that the court erroneously considered
his prior convictions in deciding to sentence him as a career
offender. Again, however, the court need not reach the merits of
Johnson’s claim because the Seventh Circuit has repeatedly held that
“the erroneous determination that the petitioner was a career
offender in calculating his sentence [is] not a cognizable error under
§ 2255 post-Booker. United States v. Coleman, 763 F.3d 706, 708
(7th Cir. 2014) (citing Hawkins v. United States, 706 F.3d 820, 82325 (7th Cir. 2013)). As discussed earlier in this opinion, the court
reimposed its original sentence after considering Booker’s holding
that the Guidelines are not binding on a district court judge,
(see Crim. Dkt. No. 157), and after considering Kimbrough’s holding
that a district judge may deviate from the career offender guideline if
the judge determines that the crack/powder disparity imposed by the
Guidelines yields a sentence greater than necessary to achieve
§ 3553(a)’s purposes. The Seventh Circuit affirmed the court’s
sentence. (Crim. Dkt. No. 198.) Accordingly, even if the court erred in
applying the career offender guideline in Johnson’s criminal case, the
claim is not cognizable in his § 2255 case.
(Doc. 22, pp. 17-18, collateral review). The District Court denied the § 2255
motion on May 25, 2015. (Id.). Petitioner’s appeal of this decision is currently
pending. Johnson v. United States, No. 15-2896 (7th Cir. Sept. 1, 2015).
Before commencing the instant habeas action, petitioner requested
permission to file a second or successive motion to vacate under § 2255. Johnson

v. United States, No. 16-2101 (7th Cir. May 11, 2016). Petitioner sought leave to
challenge his sentence as a career offender under Johnson v. United States,
135 S. Ct. 2551 (2015). The Seventh Circuit denied the application on June 9,
2016. (Doc. 5). The instant § 2241 petition followed.

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II.

Habeas Petition

Petitioner asks this Court to vacate his sentence. (Doc. 1, p. 5). He relies on
two recent decisions of the United States Supreme Court, i.e., Johnson v. United

States, 135 S. Ct. 2551 (June 26, 2015), and Welch v. United States, 136 S. Ct.
1257 (April 18, 2016). Petitioner asserts that Johnson and Welch create a
“vagueness test” that is generally applicable to all sentencing provisions. (Doc. 1,
p. 8).
Petitioner was sentenced as a career offender under § 4B1.2(a)(1) of the
Sentencing Guidelines based on his prior convictions in Illinois for armed robbery
pursuant to 720 ILCS 5/18-2 (Case No. 09-CR-06516 and 94-CR-18620) and
simple possession pursuant to 720 ILCS 570/402 (Case No. 94-CR-14123).
He asserts that his armed robbery convictions do not qualify as crimes of violence
under this “vagueness test” because he was not armed and did not arrive at the
scene of the armed robbery until after the robbery took place. (Doc. 1, p. 7).
Without a weapon, the conduct encompassed by his crime did not present a
“serious potential risk of physical injury to another” and therefore did not
constitute a qualifying offense. (Doc. 1, pp. 7-8). On this basis, petitioner asks the
Court to vacate his sentence. He notes that Johnson has “broken ground in an
area of little precedent” and asks this Court to broadly read Johnson and Welch
and allow him to proceed.

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III.

Discussion

Ordinarily, a prisoner may challenge his federal conviction or sentence only
by means of a § 2255 motion brought before the sentencing court, and this
remedy typically supersedes the writ of habeas corpus. Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696 F.3d 638, 640
(7th Cir. 2012)). A writ of habeas corpus under § 2255 requires the petitioner to
file his challenge in the district that imposed the criminal sentence on him.

See 28 U.S.C. § 2255(a). In this case, Johnson is clearly attacking his sentence.
He should have filed a § 2255 motion in the sentencing court. And, as Johnson
points out, he did. Further, Johnson sought permission to file a second or
successive § 2255 motion, but his request was denied by the Seventh Circuit.

Johnson v. United States, No. 16-2101 (7th Cir.) (Doc. 5).
The “savings clause” under § 2255(e) allows a federal prisoner to file a
petition under § 2241, if the remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e).
In considering what it means to be “inadequate or ineffective,” the Seventh Circuit
has held that a federal prisoner should be permitted to seek relief under § 2241
“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).
To proceed, three additional conditions must also be met: (1) the change of law
has to have been made retroactive by the Supreme Court; (2) it must be a change

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that eludes the permission in § 2255 for successive motions; and (3) “change in
law” is not to be equated to a difference between the law in the circuit in which the
prisoner was sentenced and the law in the circuit in which he is incarcerated.”

Id. at 611-12.
In his attempt to trigger application of the savings clause, Johnson relies on
two decisions of the United States Supreme Court that have no relevance to his
case. See Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015); Welch v.

United States, 136 S. Ct. 1257 (April 18, 2016). Both Johnson and Welch address
the “residual clause” of the Armed Career Criminal Act (“the Act”), 18 U.S.C. §
924(e). Federal law prohibits a felon from possessing a firearm. 18 U.S.C. §
922(g). A person who violates this law can be sentenced to prison for up to ten
years. 18 U.S.C. § 924(a)(2). The Act increases this punishment to a minimum
sentence of fifteen years and a maximum sentence of life in prison for a person in
possession of a firearm who has three or more prior convictions for a “violent
felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1).
The Act defines a “violent felony” as:
[A]ny 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) (emphasis added). The underlined portion of subsection

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(ii), i.e., “or otherwise involves conduct that presents a serious potential risk of
physical injury to another,” is referred to as the “residual clause.” The other
portions are referred to as the “elements clause” (18 U.S.C. § 924(e)(2)(B)(i)) and
the “enumerated clause” (i.e., the portion listing burglary, arson, extortion, and
offenses that involve the use of explosives).
In Johnson, the Supreme Court struck down the “residual clause” as being
unconstitutionally vague and held that “imposing an increased sentence under the
residual clause of the Armed Career Criminal Act violates the Constitution’s
guarantee of due process.” In Welch, the Supreme Court held that Johnson
applies retroactively to cases on collateral review. See also Price v. United States,
795 F.3d 731 (7th Cir. 2015). But Petitioner was not sentenced under the Act.
He was sentenced under the career offender guideline, i.e., U.S.S.G.
§ 4B1.2(a)(1). Under the guidelines, a defendant qualifies as a career offender if
the defendant was at least 18 years old at the time of the instant offense, the
instant offense is either a crime of violence or a controlled substance offense, and
the defendant has at least two prior felony convictions of either a crime of violence
or a controlled substance offense. See U.S.C.G. § 4B1.1(a).
A “crime of violence” is defined in the guideline as:
[A]ny offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that—
(1)

has as an element the use, attempted use, or threatened use of
physical force against the person of another, or

(2)

is burglary of a dwelling, arson, or extortion, involves the use
of explosives, or otherwise involves conduct that presents a
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serious potential risk of physical injury to another.
U.S.S.G.§ 4B1.2(a) (emphasis added). Like the Act, the career offender guidelines
contain an elements clause (§ 4B1.2(a)(1)), an enumerated clause (§ 4B1.2(a)(2))
(listing burglary of a dwelling, arson, extortion, or involves the use of explosives),
and a residual clause (underlined portion). Petitioner was sentenced under the
“elements clause.” However, Johnson and Welch did not address the guidelines
or, more specifically, the “elements clause.”
As the Seventh Circuit already pointed out when denying petitioner’s
application to file a second or successive § 2255 motion on June 9, 2016, the

Johnson decision is in no way implicated in petitioner’s case:
Johnson, who was sentenced as a career offender, wants to challenge
his sentence under Johnson v. United States, 135 S. Ct. 2551 (2015),
which held that the residual clause of the Armed Career Criminal Act
is unconstitutionally vague. But Johnson’s crime of conviction is a
controlled substance offense (which is in no way implicated by
Johnson), and he has three prior convictions in Illinois for armed
robbery, which qualify as crimes of violence under the elements
clause, U.S.S.G. § 4B1.2(a)(1), not the residual clause, § 4B1.2(a)(2).
United States v. Dickerson, 901 F.2d 579, 583-85 (7th Cir. 1990).
See also United States v. Waters, No. 15-2728, slip op. at 7, 2016 WL
3003352 (7th Cir. 2016) (Because “Waters was a career offender
under § 4B1.2(a)(1) [the elements clause], Waters’s argument about
the residual clause is not relevant.”).

Johnson v. United States, No. 16-2101 (7th Cir.) (Doc. 5, pp. 1-2). Johnson’s
application was denied on this basis.
The instant petition is subject to dismissal as well. Petitioner’s reliance on

Johnson and Welch is misplaced. As the Seventh Circuit emphasized last month,
“Johnson [does not] reopen[ ] all questions about the proper classification of

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prior convictions under the Guidelines and the Armed Career Criminal Act. But
the sole holding of Johnson is that the residual clause is invalid.” Stanley v.

United States, -- F.3d --, 2016 WL 3514185, *1 (7th Cir. June 1, 2016).
Because petitioner was not sentenced under the residual clause, the “savings
clause” under § 2255(e) is not triggered by his § 2241 petition. Accordingly, the
Petition shall be DISMISSED with prejudice.
IV.

Disposition

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is 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 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); 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

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Federal Rule of Civil Procedure 59(e) may toll the 30-day1 appeal deadline. It is
not necessary for petitioner to obtain a certificate of appealability. 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.

Digitally signed by
Judge David R. Herndon
Date: 2016.07.22
11:43:47 -05'00'

DATED: July 22, 2016

United States District Judge

1

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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