Warren v. Werlich

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/27/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN CARMICHAEL WARREN,
No. 11539-045,
Petitioner,
vs.

Case No. 17-cv-084-DRH

T.G. WERLICH,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the FCI-Greenville, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of
his confinement. Relying on the recent case of Mathis v. United States, –– U.S. ––,
136 S. Ct. 2243 (2016), he argues that his prior drug conviction should not have
been used to impose an enhanced sentence under the career offender sentencing
guidelines.
This case is now before the Court for a preliminary review of 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

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corpus cases, such as this action under 28 U.S.C. § 2241. 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).
Background
In October 2011, petitioner pled guilty to armed bank robbery in violation
of 18 U.S.C. § 2113(a) and (d) (Count 2 of the indictment) in the District of
Kansas, Case No. 11-cr-20040.

On April 30, 2012, he was sentenced to 300

months in prison, the statutory maximum.

(Doc. 1, p. 1); United States v.

Warren, 737 F.3d 1278 (10th Cir. 2013). Two other charges were dismissed
according to the plea agreement.
The trial court found that petitioner qualified as a career offender under the
United States Sentencing Guidelines (“USSG”), § 4B1.1(a), because he had 2 prior
felony convictions for either a crime of violence or a controlled substance offense.

United States v. Warren, 737 F.3d 1278 (10th Cir. 2013). Petitioner had one of
each.

The drug offense on which the trial court based the career-offender

enhancement was petitioner’s Missouri state court conviction for sale of a PCPlaced cigarette. Petitioner also had a previous conviction for a different armed
bank robbery. He had served approximately 12 years in federal prison for that
bank robbery, and then committed the 2011 robbery about 12 months after his
release. In sentencing him for the instant offense, the trial court found that under
the USSG, petitioner’s total offense level was 31, with a criminal history category
of VI. This yielded an advisory sentencing range of 188 to 235 months. The

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sentencing court found that an upward variance from the guideline range was
warranted, and imposed the 300 month sentence petitioner now challenges.
On December 16, 2013, the Tenth Circuit affirmed petitioner’s sentence on
appeal. United States v. Warren, 737 F.3d 1278 (10th Cir. 2013). On October
21, 2014, petitioner brought a timely motion under 28 U.S.C. § 2255. (Doc. 48 in
criminal case, No. 11-cr-20040 (D. Kan.). That motion was denied by the trial
court on March 4, 2016. (Doc. 49 in criminal case). The Tenth Circuit denied a
certificate of appealability. Warren v. United States, 660 F. App’x 611 (10th Cir.
2016).
The Petition
Petitioner focuses his argument on his Missouri drug conviction, for
violation of MRS 195.202, “Sale of a Controlled Substance.” (Doc. 1, pp. 2, 6-8).
He claims that this crime is “not a career offender generic offense” under the
reasoning of Mathis v. United States, 136 S. Ct. 2243 (2016). Petitioner explains
that the Missouri statute defines “sale” as including a “barter, exchange, or gift,”
and further defines “deliver/delivery” as a “transfer from one person to another . .
. and includes a sale.” (Doc. 1, p. 7). He characterizes the Missouri statue as a
“divisible” statute including several alternative elements of the offense, analogous
to the burglary statute which the Mathis Court found to be too broad to fit within
the definition of a “generic” burglary.
He notes that neither of the terms used in the Missouri statute (“deliver” or
“sale”) is found in the USSG at § 4B1.1 or § 4B1.2. He points out that §4B1.2
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defines “controlled substance offense” as one that prohibits the “distribution” of a
drug, or the “possession” with intent to “distribute or dispense” the controlled
substance.

USSG § 4B1.2.

Based on his observation that the relevant USSG

sections do not include the same words as the Missouri statute, he reasons that
the career offender guidelines have been improperly broadened by including his
drug sale offense as a predicate for enhancing his sentencing range, and then
imposing a greater sentence.
Petitioner asks this Court to vacate his sentence and remand the case for a
new sentencing. (Doc. 1, p. 8).
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). Here, petitioner is attacking
his conviction and sentence, which points to § 2255 as the proper avenue for
relief.
Under very limited circumstances, a prisoner may employ § 2241 to
challenge his federal conviction or sentence.

28 U.S.C. § 2255(e) contains a

“savings clause” which authorizes a federal prisoner to file a § 2241 petition

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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
retroactively. Lastly, he must demonstrate that there has been a “fundamental

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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 Missouri drug
conviction should not have been counted as a “controlled substance offense”
under the definitions in the United States Sentencing Guidelines. In Mathis, the
Supreme Court held that an Iowa burglary statute that allowed for a conviction
based on entry to a vehicle was too broad to qualify as a “generic burglary”
statute. “Generic burglary” requires that the unlawful entry must have been made
to a building or other structure. Because the Iowa statute was not “divisible” into
distinct elements according to where the crime occurred, the Mathis Court held
that a conviction under that state law could not be used as a predicate offense to
enhance a federal defendant’s sentence under the burglary clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Mathis, 136 S. Ct. at
2250-51; see also United States v. Haney, 840 F.3d 472, 475-76 (7th Cir. 2016).

Mathis is a statutory interpretation case rather than a constitutional case, thus it
satisfies the first element of the savings clause. See Dawkins v. United States, 829
F.3d 549, 551 (7th Cir. 2016) (because Mathis “is a case of statutory
interpretation,” claims based on Mathis “must be brought, if at all, in a petition
under 28 U.S.C. § 2241”).
As to the second factor, the decision in Mathis was announced on June 23,

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2016, some two months after petitioner’s § 2255 motion was denied on March 4,
2016, so it appears that petitioner could not have relied on it in that proceeding.
Further, the Seventh Circuit has determined 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)).
Finally, petitioner plausibly asserts that the increase in the calculation of
his sentencing range based on the career-criminal enhancement (which relied on
the Missouri drug conviction), and his significantly higher sentence, could be
deemed a miscarriage of justice. The petition thus facially satisfies the conditions
to be considered in a § 2241 proceeding under the savings clause of § 2255(e).
It is notable, however, that “[t]he Supreme Court’s decision in Mathis dealt
with the Armed Career Criminal Act (ACCA), not the federal sentencing
Guidelines.” United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016). The

Mathis decision thus may or may not be applicable to petitioner’s sentence, where
the sentencing enhancement was determined based on the advisory sentencing
guidelines, not the ACCA statute.

The Supreme Court recently held that the

residual clause in USSG § 4B1.2(a) was not subject to a vagueness challenge,
distinguishing the situation where a sentence was based on the advisory
guidelines from a sentence imposed under the residual clause of the ACCA
statute. Beckles v. United States, No. 15-8544, 2017 WL 855781 (U.S. Mar. 6,

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2017) (distiguishing Johnson v. United States, –– U.S. ––, 135 S. Ct. 2551
(2015)).
Further, petitioner’s argument that a “sale” or “delivery” of a controlled
substance is materially different from “distributing” or “dispensing” it appears to
be questionable. However, given the limited record before the Court at this stage,
and the still-developing application of the Mathis decision, it is not plainly
apparent that Petitioner is not entitled to habeas relief. See Rule 4 of the Rules
Governing § 2254 Cases in United States District Courts. Therefore, the Court
finds it appropriate to order a response to the petition.
Disposition
IT IS HEREBY ORDERED that Respondent shall answer or otherwise
plead within thirty days of the date this order is entered. 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
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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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 (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.

Digitally signed by
Judge David R.
Herndon
Date: 2017.03.27
11:29:07 -05'00'

41(b).
IT IS SO ORDERED.
Dated: March 27, 2017

United States District Judge

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