Brown v. Werlich

Filing 24

ORDER DISMISSING CASE. Brown's petition for writ of habeas corpus under 28 U.S.C. Sec. 2241 (Doc. 1 ) is DENIED. This action is DISMISSED with prejudice, and the Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Chief Judge Nancy J. Rosenstengel on 5/22/2019. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD BROWN, #08088-025,
Petitioner,
vs.
T. G. WERLICH,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 17-cv-0058-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Petitioner Reginald Brown, an inmate in the Bureau of Prisons, filed a petition for writ of
habeas corpus under 28 U.S.C. § 2241. (Doc. 1). In 2012, Brown was sentenced to a 180 month
term of imprisonment after pleading guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). His sentence was enhanced pursuant to the Armed Career Criminal Act
(“ACCA”) based, in part, on a 1996 Missouri felony conviction for distribution, delivery,
manufacture or production of a controlled substance pursuant to MO. REV. STAT. § 195.211
(1989). 1 18 U.S.C. § 924(e)(2)(A)(ii). Brown now invokes Mathis v. United States, – U.S. –, 136
S. Ct. 2243 (2016), to challenge the enhancement based on this prior conviction and argue that he
is entitled to be resentenced without the ACCA enhancement. Specifically, Brown argues that his
1996 Missouri conviction does not qualify as a “serious drug offense” within the meaning of the
ACCA.

1

As part of a revision of Missouri’s criminal code, this section was amended and renumbered as
MO. REV. STAT. § 579.055, effective January 1, 2017. 2014 Mo. Legis. Serv. S.B. 491 (VERNON’S)
(West’s No. 9). The statute will be referred to by its citation at the time of Brown’s 1996 conviction
throughout the rest of this Order.

1

RELEVANT FACTS AND PROCEDURAL HISTORY
Brown pleaded guilty to one count of Felon in Possession of a Firearm pursuant to
18 U.S.C. § 922(g)(1) on August 5, 2011. United States v. Brown, Case No. 10-cr-30165-DRH,
Docs. 25, 27 (S.D. Ill. Aug. 8, 2011). Brown pleaded guilty without entering into a formal plea
agreement. Id. The Presentence Report (“PSR”) determined that Brown had at least three
qualifying ACCA predicate felony convictions and was subject to a mandatory minimum sentence
of at least 15 years (180 months) imprisonment. Id. at Doc. 35, p. 12. Among these predicate
convictions was a 1996 Missouri conviction for distribution, delivery, manufacture, or production
of a controlled substance. 2 Id. at p. 6. Neither Brown nor his counsel objected to any part of the
PSR. Id. at Doc. 42, p. 5. Brown was ultimately sentenced to 180 months’ imprisonment on January
13, 2012. Id. at Docs. 36, 38.
Brown did not file a direct appeal. He did, however, file a motion under 28 U.S.C. § 2255
in this district, asserting that his trial counsel provided ineffective representation in connection
with his sentencing. The motion was denied. Brown v. United States, Case No. 15-cv-1385-DRH,
Doc. 5 (S.D. Ill. Feb. 11, 2016). Brown appealed to the Seventh Circuit, but his appeal was
dismissed for failure to pay the required docketing fee after being denied leave to proceed in forma
pauperis on appeal. Brown v. United States, Case No. 16-2392, Doc. 5-1 (7th Cir. Aug. 23, 2016).
APPLICABLE LEGAL STANDARDS
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not be used to
raise claims of legal error in conviction or sentencing, but are instead limited to challenges
regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998).

2

MO. REV. STAT. § 195.211 (1989).

2

Aside from the direct appeal process, a prisoner who has been convicted in federal court is
generally limited to challenging his conviction and sentence by bringing a motion pursuant to
28 U.S.C. § 2255 in the court which sentenced him. A Section 2255 motion is ordinarily the
“exclusive means for a federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214,
217 (7th Cir. 2003). And a prisoner is generally limited to only one challenge of his conviction
and sentence under Section 2255. A prisoner may not file a “second or successive” Section 2255
motion unless a panel of the appropriate court of appeals certifies that such motion contains either
(1) newly discovered evidence “sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense,” or (2) “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h).
It is possible, however, under very limited circumstances, for a prisoner to challenge his
federal conviction or sentence under Section 2241. 28 U.S.C. § 2255(e) contains a “savings
clause” which authorizes a federal prisoner to file a Section 2241 petition where the remedy under
Section 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C.
§ 2255(e). See United States v. Private, 300 F.3d 792, 798-99 (7th Cir. 2002). The Seventh Circuit
construed the savings clause in In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998): “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.”
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. Second, he must show that he relies

3

on a decision that he could not have invoked in his first Section 2255 motion and that case must
apply 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).
Since Davenport, the Seventh Circuit has made it clear that “there must be some kind of
structural problem with section 2255 before section 2241 becomes available. In other words,
something more than a lack of success with a section 2255 motion must exist before the savings
clause is satisfied.” See Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
ANALYSIS
Brown, invoking Mathis v. United States, – U.S. –, 136 S. Ct. 2243 (2016), challenges the
use of his 1996 Missouri controlled substance conviction as a basis for his ACCA sentencing
enhancement. The sentencing court found this conviction to be a “serious drug offense” under the
ACCA because it involved manufacturing, distributing, or possessing with intent to manufacture
or distribute a controlled substance. 18 U.S.C. § 924(e)(2)(A)(ii). Specifically, Brown argues that
because the Missouri statute that he was convicted under criminalizes the “sale” of a controlled
substance, it is broader than the ACCA’s definition of serious drug offense which only includes
offenses involving manufacturing, distributing, or possessing with intent to manufacture or
distribute a controlled substance. (Doc. 1, pp. 9–10). Thus, Brown argues that his 1996 Missouri
controlled substance conviction was improperly considered a predicate serious drug offense for
the purposes of his ACCA sentence enhancement. (Id.).
The ACCA’s definition of a “serious drug offense” is as follows:
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter
4

705 of title 46 for which a maximum term of imprisonment of ten years or more is
prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a
maximum term of imprisonment of ten years or more is prescribed by law[.]
18 U.S.C. § 924(e)(2)(A). Because Brown’s prior conviction was for a violation of Missouri law,
subsection (ii) of this statute applies here.
As a preliminary matter, it is doubtful that Brown’s petition fits within the savings clause
as set forth in Davenport. The first of the Davenport requirements is reliance on a new statutory
interpretation case. While Brown does cite to Mathis, a closer reading reveals that his argument
does not arise out of that decision, and his petition therefore does not actually rely on Mathis.
Mathis concerns the method a court should use to determine whether a defendant’s prior
conviction qualifies under the ACCA’s “enumerated clause,” which refers to the crimes (burglary,
arson, or extortion) that are specifically named as violent felonies in Section 924(e)(2)(B). That
clause is not implicated here. The analysis would require the court to determine whether the
elements of the prior conviction match up with the elements of the “generic” version of the
enumerated crime (e.g., determining whether the elements of a given state’s burglary statute match
up with the generic version of burglary). Mathis, 136 S. Ct. at 2248. Brown’s case involves the
definition of a serious drug offense under the ACCA, not the definition of a violent felony. The
definition of serious drug offense is structured differently than the definition of violent felony
because there is no statutory list of enumerated crimes that constitute serious drug offenses. Given
this significant difference, it is difficult to see how Mathis applies here, because there is no generic
crime for the Court to compare to Brown’s 1996 conviction.

5

The Seventh Circuit has not explicitly considered whether or how Mathis applies to
determining whether a prior conviction qualifies as a “serious drug offense” in any published cases,
within the meaning of 18 U.S.C. § 924(e)(2)(A)(ii). The Court is, however, aware of recently
published Seventh Circuit precedent where the categorical approach of Mathis (which originates
from Taylor v. United States, 495 U.S. 575, 600-02 (1990)), was applied to a different federal
recidivism statute, United States v. Elder, 900 F.3d 491, 501 (7th Cir. 2018), as well as a recent
unpublished decision that applied the categorical approach to find a past conviction for cocaine
delivery under Indiana law was a “serious drug offense” under Section 924(e)(2)(A)(ii). United
States v. Anderson, – F. App’x –, 2019 WL 1306309, at *4 (7th Cir. Mar. 21, 2019). These cases
may indicate the Seventh Circuit’s willingness to apply Mathis to Section 924(e)(2)(A)(ii) on
direct review, 3 but they do not establish Mathis’s availability on collateral review, as is the case
here. This Court does not ultimately need to decide those questions, however, because even
applying Mathis, Brown’s claim fails on the merits.
The predicate conviction Brown takes issue with is his 1996 violation of MO. REV. STAT.
§ 195.211(1) (1989). That statute provided:
Except as authorized by sections 195.005 to 195.425 and except as provided in
section 195.222, it is unlawful for any person to distribute, deliver, manufacture,
produce or attempt to distribute, deliver, manufacture or produce a controlled
substance or to possess with intent to distribute, deliver, manufacture, or produce a
controlled substance.
Id. Some of the terms used in § 195.211(1) were defined in another Missouri statute, MO. REV.
STAT. § 195.010 (1989). As is relevant here, “deliver” was defined as “the actual, constructive, or
attempted transfer from one person to another of drug paraphernalia or of a controlled substance,
or an imitation controlled substance, whether or not there is an agency relationship, and includes

3

See Elder, 900 F.3d at 493–94; Anderson, 2019 WL 1306309 at *1.

6

a sale.” Id. at § 195.010(8). “Sale” includes “barter, exchange, or gift, or offer therefor, and each
such transaction made by any person, whether as principal, proprietor, agent, servant or
employee.” Id. at § 195.010(38).
Brown argues that the Missouri statute criminalizes more behavior than the ACCA’s
definition of a serious drug offense because the Missouri statute criminalizes the “sale” of a
controlled substance, while the ACCA refers only to drug offenses involving “manufacturing” or
“distributing” a controlled substance. (Doc. 1, pp. 9–10). This argument is a mechanical one,
focusing on the absence of the word “sale” from Section 924(e)(2)(A)(ii) without considering the
meaning of the language of either the Missouri statute or the ACCA provision. Brown makes no
attempt to explain why the absence of the word “sale” from the ACCA means that MO. REV. STAT.
§ 195.211(1) is broader than a serious drug offense within the meaning of the ACCA other than
merely pointing at the absence of “sale” and the inclusion of “distributing” in § 924(e)(2)(A)(ii).
The ACCA refers to serious drug offenses involving the distribution of controlled
substances. The Missouri statute refers to both distribution and delivery of controlled substances.
The Eighth Circuit has rejected the argument that “distributing” in the ACCA means something
meaningfully different than “deliver” in the Missouri statute, noting that MO. REV. STAT.
§ 195.010(12) defines distribute as “to deliver other than by administering or dispensing a
controlled substance.” (emphasis added). In other words, distribute and deliver in the Missouri
statute are redundant, and a violation of the Missouri statute is a serious drug offense within the
meaning of the ACCA. United States v. Brown, 408 F.3d 1016, 1018 (8th Cir. 2005); see also
United States v. Long, 320 F.3d 795, 802 (8th Cir. 2003) (conviction for “delivery” of a controlled

7

substance is a serious drug offense under the ACCA). Nothing in Mathis calls into question the
validity of the holding in Brown. 4
“Sale,” as defined in MO. REV. STAT. § 195.010(38), is also not any broader than
“distribution,” as construed by Missouri law. Sale “includes barter, exchange, or gift, or offer
therefor,” each of which involves distribution. Notably, the Missouri controlled substances statute
does not criminalize a mere offer without intent to sell. United States v. Thomas, 886 F.3d 1274,
1277 (8th Cir. 2018), (citing State v. Sammons, 93 S.W.3d 808, 811 (Mo. Ct. App. 2002)).
Therefore, the reasoning of cases such as United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017),
and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), does not apply here. The obvious intent
of Section 924(e)(2)(A)(ii) is to exclude state laws that criminalize simple possession. The
Missouri statue at issue does not criminalize simple possession. Thus, this Court concludes that
MO. REV. STAT. § 195.211(1) fits squarely within the ACCA description of a serious drug offense,
i.e., a state law “involving manufacturing, distributing, or possessing with intent to manufacture
or distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). As such, Brown’s Missouri
drug conviction was properly used as a predicate offense for the career-criminal enhancement of
his federal sentence.

4

There are also several cases that, while not specifically analyzing MO. REV. STAT. § 195.211, have
found that state convictions for both “selling” and “delivering” controlled substance are properly
considered within the ACCA’s definition of serious drug offenses. See, e.g., McNeill v. United
States, 563 U.S. 816, 824 (2011) (convictions for selling cocaine and possessing cocaine with intent
to sell were serious drug offenses within the meaning of the ACCA); United States v. Rodriquez,
553 U.S. 377, 380–85 (2008) (prior conviction for delivery of a controlled substance qualified as
serious drug offense under the ACCA); United States v. Anderson, – F. App’x –, 2019 WL 1306309,
at **3–4 (7th Cir. Mar. 21, 2019) (prior conviction for cocaine delivery “fits squarely within the
scope of [the ACCA]’s prohibition on “distributing.”).

8

CONCLUSION
For the reasons set forth above, Brown’s petition for writ of habeas corpus under 28 U.S.C.
§ 2241 (Doc. 1) is DENIED. This action is DISMISSED with prejudice, and the Clerk of Court
is DIRECTED to enter judgment accordingly.
If Brown wishes to appeal the dismissal of this action, his notice of appeal must be filed
with this Court within 60 days of the entry of judgment. FED. R. APP. P. 4(a)(1(A). A motion for
leave to appeal in forma pauperis (“IFP”) must set forth the issues Brown plans to present on
appeal. See FED. R. APP. P. 24(a)(1)(C). If Brown does choose to appeal and is allowed to proceed
IFP, he will be liable for a portion of the $505.00 appellate filing fee (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 60-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. Other motions, including a Rule 60 motion for relief
from a final judgment, do not toll the deadline for an appeal.
It is not necessary for Brown to obtain a certificate of appealability from this disposition
of his Section 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: May 22, 2019
___________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

9