Sanders v. Werlich

Filing 7

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/22/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DeANGELO SANDERS,
No. 06788-025,
Petitioner,
vs.

Case No. 16-cv-1249-DRH

T. WERLICH,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court for a preliminary merits review. Petitioner
is currently confined at the FCI- Terre Haute, Indiana. He brought this habeas
corpus action while he was incarcerated at the FCI-Greenville, Illinois, and this
Court retains jurisdiction over the matter.
The Court must evaluate the Petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in United States District Courts. Rule 4 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, such as this action
under 28 U.S.C. § 2241.

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Background
Petitioner was convicted after a jury trial in this Court of being a felon in
possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5845, 5861(d),
5871 (Count 1), and 18 U.S.C. § 922(g)(1) (Count 2). United States v. Sanders,
Case No. 05-cr-30200-MJR.

On January 19, 2007, he was sentenced to 120

months on the unregistered firearm charge (Count1) and a concurrent 295
months on the felon-in-possession charge (Count 2). His sentence was enhanced
based on the finding that he was an armed career criminal. 18 U.S.C. § 924(e).
He had two prior convictions for aggravated battery, as well as two convictions for
burglary. (Doc. 1-1, pp. 1-2).
Petitioner’s conviction and sentences were affirmed on direct appeal in
March 2008. United States of America v. Sanders, 520 F.3d 699 (7th Cir. 2008).
He then filed a petition to vacate, correct, or set aside his sentence under 28
U.S.C. § 2255, which was dismissed in April 2010. Sanders v. United States,
Case No. 09-cv-182-MJR (S.D. Ill.).
Subsequently, Petitioner filed three separate actions seeking leave from the
Court of Appeals to file a second or successive § 2255 motion.
unsuccessful.

Each was

The two most recent requests sought to challenge Petitioner’s

enhanced sentence under Johnson v. United States, -- U.S. --, 135 S. Ct. 2551
(2015) (holding that the imposition of an enhanced sentence under the residual
clause of the Armed Career Criminal Act (“ACCA”) is unconstitutional).
Permission was denied in the first of Petitioner’s applications because his

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sentence was not imposed pursuant to the residual clause.

Instead, the two

burglary convictions were for an offense specifically listed in the ACCA, and the
aggravated battery convictions contained an element of physical force. Sanders v.

United States, No. 15-2875 (Doc. 6) (7th Cir. Sept. 25, 2015). The holding in
Johnson, therefore, offered no relief for Petitioner.
In 2016, Petitioner filed his most recent application with the Seventh
Circuit, again invoking Johnson, but also relying on Mathis v. United States, -U.S. --, 136 S. Ct. 2243 (2016). Mathis held that an Iowa burglary conviction did
not qualify as a predicate violent felony offense under the ACCA because the Iowa
statute, which criminalized entry into a vehicle, was broader than the “generic”
offense of burglary listed in § 924(e)(2)(B)(ii) – which must involve the unlawful
entry into a building or other structure. Mathis, 136 S. Ct. at 2250-51, 2257.
The Seventh Circuit found that Petitioner’s Johnson claim could not be raised in
a successive § 2255, because he had attempted to raise it earlier. However, the
court noted that Mathis “is a case of statutory interpretation [and] does not
announce ‘a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court.’” Sanders v. United States, No. 16-2822 (Doc. 7)
(7th Cir. July 29, 2016). The appellate court denied Petitioner’s application to
bring a successive § 2255 motion, but instructed that “[a]n independent claim
based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241.”

Id.
The instant petition followed.

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The Petition
Petitioner’s first burglary conviction was under 720 ILL. COMP. STAT. 5/19-3,
on September 21, 1992, in Case No. 92-CF-194. (Doc. 1, p. 6; Doc. 1-1, p. 2).
This conviction, along with the two aggravated battery convictions, was used to
enhance Petitioner’s sentence under the ACCA.

It was revealed in the

government’s response to one of Petitioner’s applications to bring a successive
§ 2255 motion that Petitioner had also been convicted of burglary in a 2002 case
(Case No. 02-CF-2841, under 720 ILL. COMP. STAT. 5/19-1. (Doc. 1-1, p. 2). By
that time the statute had been amended.
Petitioner asserts that when he was convicted of residential burglary under
the 1992 Illinois statute, that law did not conform to the “generic burglary”
definition as recently explained in Mathis. (Doc. 1, p. 6; Doc. 1-1, p. 3). The
Illinois statute at the time defined “dwelling” to include “a building or portion
thereof, a tent, a vehicle, or other enclosed space which is used or intended for
use as a human habitation, home, or residence.” (Doc. 1-1, p. 3; quoting 720 ILL.
COMP STAT. 5/19-3(a)). Section 5/2-6 further provides that “[f]or the purposes of
Section 19-3 of this code, “dwelling” means a house, apartment, mobile home,
trailer, or other living quarters . . . .” The inclusion of a vehicle in the list of
“dwellings” broadens that version of the Illinois statute beyond “generic burglary,”
and indicates that Petitioner’s 1992 conviction should not have been used as a
predicate conviction to trigger the enhanced sentence he received.

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Likewise, Petitioner argues that his 2002 Illinois burglary conviction was
based on a too-broad statutory definition of the location of the crime, which
included vehicles such as “watercraft, aircraft, motor vehicles and railroad car[s].”
(Doc. 1, p. 7; Doc. 1-1, p. 4). Therefore, this conviction also does not qualify as a
proper predicate conviction for ACCA sentencing.
Petitioner asserts that § 2255 is inadequate to address his Mathis challenge
to his enhanced sentencing, and that his claim qualifies for review under the
“savings clause” of § 2255(e). (Doc. 1-1, pp. 6-7). His existing sentence is 5 years
longer than he would have received if he had been given the statutory maximum
term without the ACCA enhancement. As relief, he requests that his sentence be
vacated and the case remanded for resentencing absent the armed-career-criminal
enhancement.
Discussion
As a general matter, “28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide
federal prisoners with distinct forms of collateral relief. Section 2255 applies to
challenges to the validity of convictions and sentences, whereas § 2241 applies to
challenges to the fact or duration of confinement.” Hill v. Werlinger, 695 F.3d
644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir.
2000). See also Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v.

United States, 138 F.3d 693, 694 (7th Cir. 1998).
Under very limited circumstances, a prisoner may employ § 2241 to
challenge his federal conviction or sentence.

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28 U.S.C. § 2255(e) contains a

“savings clause” which authorizes a federal prisoner to file a § 2241 petition
where the remedy under § 2255 is “inadequate or ineffective to test the legality of
his detention.” 28 U.S.C. § 2255(e). See Hill, 695 F.3d at 648 (“‘Inadequate or
ineffective’ means that ‘a legal theory that could not have been presented under §
2255 establishes the petitioner's actual innocence.’”) (citing Taylor v. Gilkey, 314
F.3d 832, 835 (7th Cir. 2002). See also United States v. Prevatte, 300 F.3d 792,
798-99 (7th Cir. 2002). The fact that Petitioner may be barred from bringing a
second/successive § 2255 petition is not, in itself, sufficient to render it an
inadequate remedy.

In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998)

(§ 2255 limitation on filing successive motions does not render it an inadequate
remedy for a prisoner who had filed a prior § 2255 motion). Instead, a petitioner
under § 2241 must demonstrate the inability of a § 2255 motion to cure the defect
in the conviction. “A procedure for postconviction relief can be fairly termed
inadequate when it is so configured as to deny a convicted defendant any
opportunity for judicial rectification of so fundamental a defect in his conviction
as having been imprisoned for a nonexistent offense.” Davenport, 147 F.3d at
611.
The Seventh Circuit has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. First, he
must show that he relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on a decision that he
could not have invoked in his first § 2255 motion, and that case must apply

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retroactively. Lastly, he must demonstrate that there has been a “fundamental
defect” in his conviction or sentence that is grave enough to be deemed a
miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See

also Brown v. Rios, 696 F3d 638, 640 (7th Cir. 2012).
Petitioner invokes Mathis v. United States, –– U.S. ––, 136 S. Ct. 2243, 195
L. Ed. 2d 604 (2016), as grounds for his argument that his two Illinois burglary
convictions no longer qualify as predicate felonies for an ACCA-enhanced
sentence. The Seventh Circuit has determined that the 1975 version of the Illinois
burglary statute (which appears to include the same language Petitioner
challenges herein), like the statute under review in Mathis, did not fit the
definition of generic burglary. United States v. Haney, 840 F.3d 472, 475-76 (7th
Cir. 2016). Further, the appellate court found that “substantive decisions such as

Mathis presumptively apply retroactively on collateral review.”

Holt v. United

States, 843 F.3d 720, 721-22 (7th Cir. 2016) (citing Davis v. United States, 417
U.S. 333 (1974); Montgomery v. Louisiana, –– U.S. ––, 136 S. Ct. 718, 193 L. Ed.
2d 599 (2016)). Because Mathis was not decided until 2016, Petitioner could not
have relied on it in his original § 2255 motion.

Finally, the additional 5-year

sentence imposed on Petitioner as a result of the ACCA enhancement is significant
enough to warrant habeas review. The Petition appears, therefore, to fall within
the savings clause, making § 2241 an appropriate vehicle to review his claims.
Furthermore, the Seventh Circuit, in rejecting Petitioner’s most recent
application to bring a successive § 2255 motion to present this identical issue,

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noted that Petitioner’s Mathis claim “must be brought, if at all, in a petition under
28 U.S.C. § 2241.” Sanders v. United States, No. 16-2822 (Doc. 7) (7th Cir. July
29, 2016).
Disposition
Without commenting on the merits of Petitioner’s claims, the Court
concludes that the Petition survives preliminary review under Rule 4 and Rule
1(b) of the Rules Governing Section 2254 Cases in United States District Courts.
IT IS HEREBY ORDERED that Respondent shall answer or otherwise
plead within thirty days of the date this order is entered (on or before April 20,
2017). 1

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 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
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.
1

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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 (7) days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.
Dated: March 22, 2017

Digitally signed by Judge
David R. Herndon
Date: 2017.03.22 14:11:47
-05'00'
United States District Judge

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