Kennedy v. Warden

Filing 3

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
JUSTIN WESLEY KENNEDY,
#36664-044
Petitioner,

No. 17 cv–161 DRH

vs.
WARDEN,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Justin W. Kennedy, who is currently incarcerated in the Federal
Correctional Institution in Marion, 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 enhanced career-offender sentence 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.

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The Petition
In his criminal case in the Eastern District of Missouri, United States v.

Kennedy, No. 1:09-cr-170-CEJ, Petitioner pled guilty to one offense: Conspiracy to
Manufacture a Substance Containing a Detectable Amount of Methamphetamine,
in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C). (Doc. 1-1, p. 3). He was
sentenced to 151 months imprisonment, 3 years of supervised release, and a
mandatory special assessment fee of $100. (Doc. 1-1, p. 3). The career-offender
enhancement was imposed pursuant to the United States Sentencing Guidelines
(“USSG”) at § 4B1.1, based on two prior convictions for attempted manufacture of
methamphetamine and possession of ephedrine with intent to manufacture
methamphetamine.

(Doc. 1-1, p. 5).

As a result of the career-offender

determination, Petitioner’s total offense level was raised from 23 to 29, and the
corresponding sentencing guideline range increased from 92-115 months to 151188 months incarceration. (Doc. 1-1, pp. 5-6).
Petitioner appealed his conviction, but his appeal was dismissed. (Doc.1-1.
p. 7). Petitioner also filed a § 2255 petition arguing that he received ineffective
assistance of counsel. Id. Petitioner’s § 2255 petition was denied. Id. Petitioner
now argues that pursuant to Mathis, he should be resentenced without
enhancement because one or both of his underlying convictions do not constitute
controlled substance offenses under the reasoning in Mathis, as the elements of
Petitioner’s underlying offenses criminalize a greater swath of conduct than the
elements of the relevant guidelines offense. (Doc. 1-1, pp. 18-21).

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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
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;

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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
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,

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Mathis focused on what constitutes a prior violent felony under the ACCA.
Notably, “[t]he Supreme Court’s decision in Mathis dealt with the Armed Career
Criminal Act (ACCA), not the federal sentencing Guidelines.”

Hinkle, 832 F.3d 569, 574 (5th Cir. 2016).

United States v.

However, Mathis is likely also

applicable to the career offender guidelines, in that the “decision in Mathis
clarified when and how the modified categorical approach is applied in the
context of federal sentencing,” and did not necessarily limit itself to cases
involving the ACCA. Id.
Petitioner argues that Mathis applies to his case and enables this Court to
review the Eastern District of Missouri’s determination that his prior drug-related
offenses could act as predicates for the career offender enhancement, claiming
that, like in Hinkle, one or both of his drug-related convictions cannot be
considered predicate offenses under the career-offender guidelines provision.
(Doc. 1-1, pp. 13-19). He first argues that the statute underlying his attempt to
commit the offense of manufacture of methamphetamine conviction is broader
than the “controlled substance offense” definition under § 4B1.2 of the Guidelines,
particularly because the statute does not require the possession of any illegal
substances. (Doc. 1-1, pp. 18-19). He further claims that the facts underlying his
possession of ephedrine conviction similarly do not support a controlled
substance offense, for the statute under which he was convicted or, construing the
Petition liberally, § 4B1.2. (Doc. 1-1, pp. 20-21).
The Court is without sufficient information to determine whether the

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statutes underlying the convictions resulting in Petitioner’s status as a career
offender are indeed broader than the relevant definition in § 4B1.2. 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 Warden of Marion USP to file a response to the
Petition.
IT IS HEREBY ORDERED that Respondent WARDEN of Marion USP shall
answer the Petition or otherwise plead within thirty (30) days of the date this
order is entered (on or before April 27, 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
1

The response date ordered herein is controlling. Any date that CM/ECF should generate in the course of
this litigation is a guideline only.

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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. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.
Signed this 27th day of March, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.03.27
16:42:50 -05'00'
UNITED STATES DISTRICT JUDGE

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