Murray v. Werlich

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 6/7/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH MURRAY,
#19596-045
Petitioner,

Case No. 17 cv–141 DRH

vs.
T. G. WERLICH,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Kenneth Murray, who is currently incarcerated in the Federal
Correctional Institution in Greenville, Illinois, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). In the petition, he argues that
under the recent decision of the Supreme Court in Mathis v. United States, 136 S.
Ct. 2243 (2016), his sentence enhanced by the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is unconstitutional. (Doc. 1).
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 the United States District
Courts.
The Petition
In his criminal case in the Western District of Missouri, United States v.
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Murray, No. 4:06-cr-0272-NKL (W.D.Mo. June 29, 2007), petitioner pled guilty to
Count 1 of the indictment, felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). Murray, No. 4:06-cr-0272-NKL at (Doc. 24). He was sentenced
to 180 months imprisonment. Id. An enhancement was imposed pursuant to the
ACCA, 18 U.S.C. § 924(e), based on three prior convictions for “Sale of a
Controlled Substance” in violation of Mo. Rev. Stat. § 195.010. (Doc. 1, p. 2).
Petitioner appealed his conviction in 2007 and filed a § 2255 petition in
2016. Murray, No. 4:06-cr-0272-NKL at (Docs. 25, 34). Both of these efforts
failed. Id. at (Docs. 32, 35). Petitioner now argues that pursuant to Mathis, he
should be resentenced without enhancement because his underlying drug
convictions do not qualify as predicate serious drug offenses under the ACCA,
pursuant to the reasoning in Mathis, as the elements of petitioner’s underlying
offenses criminalize a greater swath of conduct than the generic ACCA serious
drug offense, defined at 18 U.S.C. § 924(e)(2)(A)(ii). (Doc. 1, pp. 12-13).
Discussion
Rule 4 of the Rules Governing Section 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 cases.
Normally a person may challenge his federal conviction only by means of a
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motion brought before the sentencing court pursuant to 28 U.S.C. § 2255, and
this remedy normally supersedes the writ of habeas corpus. A § 2241 petition by
a federal prisoner is generally limited to challenges to the execution of the
sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Atehortua

v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Federal prisoners may utilize §
2241, however, to challenge the legality of a conviction or sentence in cases under
the “savings clause” of § 2255(e). The savings clause allows a petitioner to bring a
claim under § 2241, where he can show that a remedy under § 2255 is inadequate
or ineffective to test the legality of his detention. Id. See also United States v.

Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
The Court of Appeals for the Seventh Circuit has held that § 2255 is only
inadequate or ineffective when three requirements are satisfied: 1) the petitioner
relies on a new case of statutory interpretation rather than a constitutional
decision; 2) the case was decided after his first § 2255 motion but is retroactive;
and 3) the alleged error results in a miscarriage of justice. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios, 696 F.3d 638, 640 (7th Cir.
2012). “‘Inadequate or ineffective’ means that ‘a legal theory that could not have
been presented under § 2255 establishes the petitioner’s actual innocence.’” Hill

v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (citing Taylor v. Gilkey, 314 F.3d
832, 835 (7th Cir. 2002)); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998)).
The instant petition meets the first requirement as Mathis is clearly a case
of statutory interpretation. See Dawkins v. United States, 829 F.3d 549, 551 (7th
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Cir. 2016) (Mathis “is a case of statutory interpretation”); Jenkins v. United

States, No. 16–3441 (7th Cir. Sept. 20, 2016) (“Mathis is not amenable to analysis
under § 2244(b) because it announced a substantive rule, not a constitutional
one.”).
The petition also meets the second requirement.

As noted above, the

Seventh Circuit has indicated that Mathis is a substantive rule. Jenkins v. United
States, No. 16–3441 (7th Cir. Sept. 20, 2016). Controlling precedent indicates
that substantive Supreme Court rules are applied retroactively. See Narvaez v.

United States, 674 F.3d 621, 625 (7th Cir. 2011); Montana v. Cross, 829 F.3d
775, 783 (7th Cir. 2016).
The Court, however, cannot ascertain whether the third requirement is met.
In Mathis, the Supreme Court held that Iowa’s burglary statute did not qualify as
a predicate violent felony under the Armed Career Criminal Act (“ACCA”) because
it was broader than the “generic” offense of burglary in § 924(e)(2)(B)(ii). Thus,

Mathis focused on what constitutes a prior violent felony under the ACCA, not
what constitutes a prior serious drug offense as is the issue in the instant case.
Petitioner argues that Mathis applies to his case and enables this Court to
review the Western District of Missouri’s determination that his prior drug-related
offenses could act as predicates for the ACCA enhancement. He argues that the
statute underlying his “Sale of a Controlled Substance” offences is broader than
the “serious drug offense” definition at 18 U.S.C. § 924(e)(2)(A)(ii). (Doc. 1, pp.
12-13).
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The Court is without sufficient information to determine whether the
statute underlying the convictions resulting in petitioner’s ACCA enhancement is
indeed broader than the relevant generic offense in the ACCA. If not, there is no
grave error constituting a miscarriage of justice and the petition must be
dismissed. However, at this stage in the litigation, the Court finds it prudent to
allow petitioner’s claim to proceed. That is, during its initial review, the Court
declines to find that petitioner’s Mathis claim is without merit. Therefore, the
Court ORDERS respondent Werlich, the Warden of Greenville USP, to file a
response to the petition.
IT IS HEREBY ORDERED that respondent WERLICH shall answer the
petition or otherwise plead within thirty (30) days of the date this Order is
entered. 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.
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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. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).

Digitally signed by
Judge David R. Herndon
Date: 2017.06.07
15:02:09 -05'00'

IT IS SO ORDERED.
DATED: June 7, 2017
7

United States District Judge

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