Stewart v. Werlich

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 4/4/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARLEND E. STEWART,
# 23551-045
Petitioner,
vs.
T.G. WERLICH,
Respondant.

No. 16-cv-1198-DRH
MEMORANDUM and ORDER

HERNDON, District Judge:
INTRODUCTION
Petitioner Arlend E. Stewart, currently incarcerated in the Greenville
Federal Correctional Institution, brings this habeas corpus action pursuant to 28
U.S.C. § 2241 to challenge his enhanced sentence following his guilty plea to
unlawfully possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2).
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.

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BACKGROUND
On January 25, 2012, after entering a plea of guilty, Stewart was convicted
of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and
924(a)(2). 1 (Criminal Case, Doc. 19 and Doc. 1, p. 3). There was no written plea
agreement. Id.
The base offense level for a section 922(g)(1) offense is set by Sentencing
Guidelines § 2K2.1(a). That section provides for a base offense level of 20 if the
defendant had a single prior “felony conviction of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 2k2.1(a)(4)(A). According to government
pleadings filed in response to Stewart’s request to file a successive § 2255 petition
in the Eighth Circuit, the presentence investigation report (“PSR”) calculated a
base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A) by virtue of Stewart’s
prior Missouri conviction for sale of a controlled substance. See Stewart v.
United States, Case No. 16-2841, Doc. 4422798 (8th Cir. July 6, 2016). The PSR
“also assessed a two-level enhancement under § 2K1.1(b)(4)(A) for possessing a
firearm that was stolen, and an additional four-level enhancement under §
2K1.1(b)(6)(B) for possession of a firearm in connection with another felony
offense – the possession of a distribution amount of cocaine – for a total offense
level of 26.” Id. at p. 4; U.S. v. Stewart, 500 Fed. Appx. 545, 546 (8th Cir.
2013)(unpublished).

1

The underlying criminal case is from the United States District Court, Western District of
Missouri, No. 5:11-cr-06010-GAF-1 (hereinafter, “Criminal Case”).
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At sentencing, the court adopted the recommendations in the PSR,
including application of the recommended four-level enhancement under §
2K1.1(b)(6)(B).

U.S.

v.

Stewart,

500

Fed.

Appx.

545,

546

(8th

Cir.

2013)(unpublished). With respect to the 2K1.1(b)(6)(B) enhancement, the court
overruled Stewart’s objections and credited the arresting officers’ testimony that a
white substance recovered during Stewart’s arrest was 34.9 grams of crack
cocaine. Id. The court sentenced Stewart to 90 months in prison, a sentence
below the midpoint of the 86–to–105–month Guidelines range calculated in the
PSR. Id.
Stewart filed a direct appeal of his conviction and sentence. Id. In his
appeal, Stewart argued the court erred in finding by a preponderance of the
evidence that the substance Stewart possessed at the time of his arrest was crack
cocaine. Id. The Eighth Circuit rejected this argument and confirmed his
conviction and sentence. Id.
On September 9, 2013, Stewart filed his initial § 2255 motion in the
Western District of Missouri seeking to vacate his conviction and sentence.
Stewart v. United States, No. 13-cv-06099-GAF. The district court denied that
motion on March 18, 2014. Id. Doc. 10.) On May 12, 2013, Stewart filed an
appeal of the Western District’s decision. Id. Doc. 13. A final judgment denying his
appeal by the court was entered on November 4, 2014. Id. Doc. 16).
On June 24, 2016, Stewart filed a request for permission to file a
successive § 2255 petition. Stewart v. United States, Case No. 16-2841, Doc.

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4417558 (8th Cir. June 24, 2016). In support of his request to file a successive
petition, Stewart cited to Johnson v. United States, 576 U.S. ––, 135 S.Ct. 2551
(2015), and Welch v. United States, 578 U.S. —, 136 S.Ct. 1257 (2016). In
responding to Stewart’s request, the government argued that Johnson was
inapplicable because all of Stewart’s predicate offenses which increased his base
offense level were serious drug offenses. Stewart v. United States, Case No. 162841, Doc. 4422798 (8th Cir. July 6, 2016). The Eighth Circuit denied Stewart’s
request without giving the basis for its decision. Stewart v. United States, Case
No. 16-2841, Doc. 4444407 (8th Cir. Sept. 1, 2016). The instant § 2241 petition
followed.
THE PETITION
Distilled to its essence, Stewart’s petition asserts three grounds for
upsetting his sentence:
(1) As a result of the Supreme Court’s decisions in Johnson and Welch,
Stewart’s enhanced sentence is unconstitutional;
(2)

The

sentencing

court

erred

in

applying

the

§

2K2.1(b)(6)(B)

enhancement because the evidence was insufficient to support a finding that the
substance recovered in connection with his arrest was, in fact, crack cocaine; an
(3) As a result of the Supreme Court’s decision in Mathis, Stewart’s
enhanced sentence is unconstitutional.

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DISCUSSION
28 U.S.C. § 2241
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, Stewart is clearly attacking his sentence. However, he has
already filed a motion pursuant to § 2255. Further, Stewart sought permission to
file a second or successive § 2255 motion, but his request was denied by the
Eighth Circuit.
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 that

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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.
Ground 1 - Johnson and Welch
In his attempt to trigger application of the savings clause, petitioner 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 (U.S. 2015); Welch v. United
States, 136 S. Ct. 1257 (U.S. 2016). Both Johnson and Welch address the
“residual clause” of the Armed Career Criminal Act (“the Act”), 18 U.S.C. § 924(e).
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).
Stewart’s argument fails for several reasons. First, Stewart’s sentence was
not enhanced based on the ACCA. Instead, his sentence was enhanced based on
the Guidelines. The Supreme Court recently held that the Guidelines are not
subject to due-process vagueness challenges. Beckles v. United States, 2017 WL
855781, No. 15-8544, slip op. at 5 (S. Ct. March 6, 2017). Second, even without
Beckles, Stewart’s Johnson argument is foreclosed by the Seventh Circuit’s

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decision in Stanley v. United States, 827 F.3d 562, 565 (7th Cir. 2016). This is
because Stewart’s predicate convictions were controlled substance offenses, which
remain untouched by Johnson. Id. at 564. Third, even if Johnson and Welch were
applicable in the instant case, § 2241 is not the appropriate vehicle for bringing
such a claim. See Montana v. Werlich, 2016 WL 3746198, *2-3 (July 13, 2016)
(Herndon, J.).
Ground 2 - Insufficient Evidence Regarding Substance Recovered During
Arrest
Stewart repeatedly contends the evidence presented at sentencing regarding
the substance recovered during his arrest was insufficient to establish that the
substance was crack cocaine. This claim does not arise out of any change in the
law and could have been brought on direct appeal and in Stewart’s subsequent §
2255 petition. In fact, as noted above, Stewart raised this exact argument on
direct appeal and raised a closely related argument in his § 2255 petition. As
such, with respect to this claim, Stewart cannot establish that his § 2255 remedy
is inadequate or ineffective. See Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.
1999) (“A reasonable opportunity to raise an issue on appeal or in a first § 2255
motion … is enough to serve that essential function and satisfy the Constitution.”)
(citing and expressing agreement with Davenport). Accordingly, Ground 2 is not a
viable basis for relief.

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Ground 3 – Mathis
Read liberally, 2 Stewart’s petition argues that, under the recent decision of
the Supreme Court in Mathis v. United States, 136 S. Ct. 2243 (2016), his
enhanced sentence under the Guidelines is unconstitutional. Stewart seems to
argue that, like in United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016)
(applying Mathis), one or both of his drug-related convictions cannot be
considered predicate offenses under the Guidelines.
With respect to this claim, there is insufficient information before the Court
upon which to conclude that dismissal at this preliminary stage pursuant to Rule
4 is appropriate. Therefore, Werlich shall be directed to respond or otherwise
plead as to Ground 3.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Grounds 1 and 2
of Stewart’s Section 2241 petition are summarily DISMISSED with prejudice;
Ground 3 shall PROCEED.
IT IS FURTHER ORDERED that respondent Werlich shall answer the
petition or otherwise plead within thirty days of the date this order is entered. 3
This preliminary order to respond does not, of course, preclude the government
from raising any objection or defense it may wish to present. Service upon the

2

Stewart does not cite to Mathis. Rather, he relies on United States v. Hinkle, 832 F.3d 569, 574
(5th Cir. 2016), a decision addressing Mathis and the modified categorical approach in the context
of federal sentencing.
3
The response date ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only. See SDIL–EFR 3.
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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 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 4th day of April, 2017

Judge Herndon
2017.04.04
16:39:36 -05'00'
United States District Judge

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