Gordon v. Werlich

Filing 4

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 9/11/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARIO L. GORDON,
#05382-025
Petitioner,
vs.

Case No. 16-cv-0735-DRH

T.G. WERLICH,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the Greenville Federal Correctional
Institute, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the constitutionality of his confinement with relation to a portion of his
sentence based on a sentencing enhancement assessed for being a career offender.
The petition was filed on June 30, 2016.
Rule 4 of the Rules Governing § 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.

After carefully

reviewing the petition in the present case, the Court concludes that petitioner is
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not entitled to relief because his claim does not fall within the scope of § 2241,
and the petition must be dismissed.

BACKGROUND
On February 4, 2002, Gordon and a number of co-defendants were charged
via a complaint with criminal offenses related to a cocaine trafficking and
distribution ring (S.D. Ill., CM/ECF, Case No. 4:02-cr-40004-SMY-1, dkt. 1).
Gordon’s case ultimately proceeded to a jury trial and the jury returned a verdict
of guilty on two counts related to his controlled substance activity (Id., doc. 154).
Following a presentence investigation report and briefs by both parties, Gordon
was sentenced to the Bureau of Prisons (“BOP”) for a term of 360 months on one
count and 240 months on the other, to be served concurrently (Id. dkt. 184).
Gordon pursued a direct appeal of his sentence, and around the same time his
case was also remanded to the sentencing court for a review in light of Supreme
Court precedent holding that the Sentencing Guidelines were advisory (Id., dkt.
189, 244).
The sentencing court reaffirmed Gordon’s sentence even after considering
the advisory nature of the guidelines (Id., doc. 244). Of pertinence, in its
memorandum the sentencing court reaffirmed its classification of Gordon’s prior
robbery convictions as two distinct predicates under the career offender guideline
(Id., doc. 244 at 4-5 (“the Court remains persuaded that it properly determined
that the two robberies were not related and were two separate offenses for

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sentencing purposes…the Court specifically rejects defendant’s renewed argument
that it should consider his prior robbery convictions as one offense for purposes
of calculating his criminal history category”)).
In December 2007, Gordon filed his first § 2255 Petition challenging his
sentence on numerous grounds including ineffective assistance of sentencing and
appellate counsel, improper calculation of his status as a career offender,
improper application of the guidelines as mandatory, and a reduction in sentence
based on revised crack cocaine guidelines (See CM/ECF, S.D. Ill., Case No. 3:06cv-01006-WDS, docs. 1, 5, 13). After the government responded, and Gordon
replied, the district court issued a memorandum and order denying Gordon’s
requests (Id., doc. 19). Gordon attempted to appeal the denial of his original §
2255 petition, but his appeal was dismissed for failure to pay the appropriate
filing fee (See CM/ECF, 7th Cir., Case No. 10-2742, dkt. 13).
In June 2016, Gordon sought permission from the Seventh Circuit to file a
subsequent § 2255 petition based upon the Supreme Court’s decision in Johnson
v. United States, 576 U.S.___, 135 S.Ct. 2551 (2015) (See 7th Cir., Case No. 162337, doc. 1).

Gordon claimed that pursuant to the holding in Johnson, his

sentence, pronounced in part under the career offender guideline, was
unconstitutional (Id.).

On June 20, 2016, a three judge panel of the Seventh

Circuit issued an Order denying Gordon’s application to file a successive § 2255
based upon Johnson. (See id., doc. 6) In its order, the panel noted that Gordon
could not qualify for relief under Johnson because he was not sentenced under

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the provision of ACCA that was found to be constitutionally infirm (Id., doc. 6)
(“Gordon was not sentenced under the residual clause. His status as a career
offender rests on two prior convictions for armed robbery in Illinois . The crime
of robbery in Illinois has an element the use of force.”).. Gordon has now filed the
present § 2241 before this Court.

HABEAS PETITION
Gordon argues that under Johnson, 576 U.S.___, 135 S.Ct. 2551, and
Welch v. United States, ___ U.S.___, 136 S.Ct. 1257 (Apr. 18, 2016), his sentence
is unconstitutional because the ACCA’s residual clause was found to be
unconstitutionally vague, and that holding was declared retroactive.

He also

argues that his Petition is properly brought as a § 2241 because he sought relief
under § 2255, but was denied leave to file a second or successive § 2255 petition.
Gordon acknowledges the restrictions on subsequent § 2255s, but argues that he
fits within the ‘savings clause’ of § 2255. In addition to these arguments, Gordon
discusses at length his ongoing contention that his two robbery convictions should
not have been counted as two distinct predicates for career offender purposes.

DISCUSSION
Under the ACCA, a person convicted under 18 U.S.C. § 924(c)—such as
Gordon—is subject to an increased sentence if he is convicted of a crime of
violence, and during and in relation to that crime he carries or possesses a

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firearm in furtherance of said crime. See 18 U.S.C. § 924(c)(1)(A). A “crime of
violence” is defined as one that “(A) has an element the use, attempted use, or
threatened use of physical force against the person or property of another, or (B)
that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.”

18 U.S.C. § 924(c)(3).

Subclause A of the definition of a crime of

violence is a mirror image of a portion of the “residual clause” of 18 U.S.C.
§ 924(e)(2)(B)—the portion of the ACCA found to be unconstitutional by Johnson.
See 576 U.S. at ____, 135 S.Ct. at 2557; 18 U.S.C. §§ 924(c)(3)(A) and
(e)(2)(B)(ii).
The Supreme Court held in Johnson, that, relative to the ACCA, imposition
of an enhanced sentence under the so-called ‘residual clause’ of § 924(e)(2)(B)
violates due process because the residual clause is unconstitutionally vague.
Additionally, the Supreme Court has held that Johnson creates a new substantive
rule of law that is applicable retroactively. Welch v. United States,__ U.S. at ___,
136 S.Ct. at 1265, 1268.

In an unpublished and not binding decision, the

Seventh Circuit has extended the Johnson rational regarding vagueness of
§ 924(e)(2)(B) to another portion of the ACCA—§ 924(c)—because the language of
the two provisions is identical. See United States v. Ruiz (7th Cir., CM/ECF,
Case No. 16-1193 (Feb. 19, 2016)). The Seventh Circuit has identified § 2255 as
the appropriate procedural vehicle for Johnson based claims. See Price v. United
States, 795 F.3d 731, 732-35 (7th Cir. 2015) (authorizing a district court to

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consider second or successive § 2255 motions seeking relief from an ACCA based
sentence under Johnson).
Despite recent precedent in favor of reexamining sentences issued under
the ACCA’s residual clause (§ 924(e)(2)(B)) and other similarly worded clauses
(§ 924(c)), Gordon’s request for relief under § 2241 must fail for two reasons.
First, the Supreme Court has declared the principle announced in Johnson to be
a new substantive rule of law—thus it falls within the scope of § 2255 and its
savings clause.

See Welch, ___ U.S. at ___, 136 U.S. at 1265, 1268; In re

Davenport, 147 F.3d 605, 608 (7th Cir. 1998) (finding that § 2255 is only
inadequate or ineffective if the petitioner relies on a new case of statutory
interpretation, not a new case that announces a substantive rule of law). In order
for Gordon to test his case under Johnson he would need to seek leave from the
Seventh Circuit to file his petition as a § 2255, the proper mechanism for a claim
relying upon a new rule of substantive law. See Price, 795 F.3d at 732-35. This
necessity brings us to the second infirmity in Gordon’s request—he already has
sought permission from the Seventh Circuit to reexamine his case in light of
Johnson.
The Seventh Circuit denied Gordon’s timely request for leave to file a
second § 2255 petition because it found that his sentence was not pronounced
under the ACCA’s residual clause, or any of its close progeny, such as § 924(c).
Because Gordon’s sentence was not reached by applying one of the provisions that
has been found unconstitutional, the Seventh Circuit concluded that Gordon

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could not make a prima facie showing that he would qualify for relief under
§ 2255.

Gordon did not appeal the Seventh Circuit’s denial to the Supreme

Court. Nothing about the Welch decision, or any subsequent precedent, changes
the Seventh Circuit’s analysis. 1

Accordingly, this Court must DISMISS the

Petition because the claim is not suitable for a § 2241 petition, the Court cannot
recharacterize it as a § 2255, and, in any event, the Seventh Circuit has already
examined this precise claim as a potential second or successive § 2255 and has
denied it on the merits.
Additionally, as to Gordon’s mention of the classification of his robbery
offenses as two distinct offenses for career offender enhancement, this issue has
already been fully litigated in his original § 2255 petition. Moreover, as the
Seventh Circuit noted, nothing about Johnson or Welch applies to the issue of
considering offenses jointly or separately for sentence enhancement purposes.
Accordingly, Gordon’s petition does not raise a valid argument on this premise.

Disposition
To summarize, Gordon has not demonstrated that his claim properly fits
within the scope of a § 2241 petition, and he has already been denied permission
The Court is aware of the Seventh Circuit’s most recent decisions regarding the career
offender provisions of the sentencing guidelines. See United States v. Hurlburt, 2016 WL
4506717 (7th Cir. Aug. 29, 2016) (en banc); United States v. McGuire, 2016 WL
4527557 (7th Cir. Aug. 30, 2016). However, neither of those decisions invalidate the
reasoning in Price, which dictates that a section 2255 petition is the appropriate
procedural vehicle for any potential claims that may arise in relation to Hurlburt or
McGuire. Thus, without passing on the merits of any potential claims, this Court notes
that these recent decisions do not impact its disposition of this case at this procedural
juncture.
1

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from the Seventh Circuit for a second or successive § 2255 petition. Consistent
with Price, Gordon’s claim would have properly been brought as a second or
successive § 2255 Petition. Price, 795 F.3d at 732-35. Accordingly, the Petition
is summarily DISMISSED with prejudice. Because a § 2241 petition is not the
appropriate procedural vehicle,
If Gordon 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
Gordon plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If Gordon
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 proper and timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal
deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than
twenty-eight (28) days after the entry of the judgment, and this 28-day deadline
cannot be extended.

It is not necessary for Gordon to obtain a certificate of

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

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The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
Signed this 11th day of September, 2016.

Digitally signed by
Judge David R.
Herndon
Date: 2016.09.11
21:10:32 -05'00'
United States District Judge

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