Lumbert v. True
ORDER DISMISSING CASE with prejudice and denying 28 U.S.C. Section 2241 petition. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 1/8/2018. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Civil No. 17-cv-210-DRH-CJP
MEMORANDUM and ORDER
Petitioner Michael Lumbert filed a petition for writ of habeas corpus under
28 U.S.C. §2241 (Doc. 1) challenging the enhancement of his sentence as a career
offender under U.S.S.G. § 4B1.1. He purports to rely on Mathis v. United States,
136 S. Ct. 2243 (2016).
Respondent filed a response at Doc. 8, and petitioner filed a reply at Doc.
Relevant Facts and Procedural History
Pursuant to a written plea agreement, Lumbert pleaded guilty to one count
of possession with intent to distribute cocaine base (“crack cocaine”) in the
Western District of Wisconsin. The plea agreement did not include a waiver of
On December 6, 2011, he was sentenced to 188 months
imprisonment. United States v. Lumbert, Case No. 11-cr-00066-bcc, Docs. 13 &
21. A copy of the docket sheet from petitioner’s criminal case is attached to Doc.
8 in this case as Ex. 4. 1 A copy of the plea agreement is attached to Doc. 8 as Ex.
The presentence report stated that petitioner qualified as a career offender
because he had four prior convictions for controlled substance offenses under
Wisconsin law. Doc. 9, Ex. 1, p. 8. In addition, because the government had filed
a notice of enhancement under 21 U.S.C. § 851, the statutory maximum term of
imprisonment was 30 years. Doc. 9, Ex. 1, p. 21.
Lumbert did not file a direct appeal. He filed a motion under 28 U.S.C. §
2255 in November 2012 arguing ineffectiveness of counsel. He did not challenge
his classification as a career offender. The motion was denied in March 2013.
Case No. 11-cr-00066-bbc, Doc. 30.
Legal Standards Applicable to Section 2241
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
limited to challenges regarding the execution of a sentence. See, Valona v. United
States, 138 F.3d 693, 694 (7th Cir.1998).
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 motion under §2255 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 bringing only one motion under §2255.
A prisoner may not file a
The Court uses the document, exhibit and page numbers assigned by the CM/ECF system.
“second or successive” 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).
However, it is possible, under very limited circumstances, for a prisoner to
challenge his federal conviction or sentence under §2241.
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.” 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
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
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).
Citing Mathis v. United States, 136 S. Ct. 2243 (2016), petitioner argues
that his prior convictions for drug offenses under Wisconsin law no longer qualify
as controlled substance offenses for purposes of the career offender enhancement.
The court need not consider the merits of petitioner’s argument because he
cannot bring a Mathis claim in a § 2241 petition.
There are some errors that can be raised on direct appeal but not in a
collateral attack such as a § 2255 motion or a § 2241 petition. A claim that a
defendant was erroneously treated as a career offender under the advisory
Sentencing Guidelines is one such claim. Hawkins v. United States, 706 F.3d 820
(7th Cir. 2013), supplemented on denial of rehearing, 724 F.3d 915 (7th Cir.
See also, United States v. Coleman, 763 F.3d 706, 708–09 (7th Cir.
2014)(“[W]e held in Hawkins that the error in calculating the Guidelines range did
not constitute a miscarriage of justice for § 2255 purposes given the advisory
nature of the Guidelines and the district court's determination that the sentence
was appropriate and that it did not exceed the statutory maximum.”)
The Seventh Circuit recently reiterated that the Sentencing Guidelines have
been advisory and not mandatory ever since the Supreme Court decided United
States v. Booker, 125 S.Ct. 738 (2005). Perry v. United States, 877 F.3d 751 (7th
Cir. 2017). Petitioner was sentenced in 2011, long after Booker was decided. He
received a sentence that was within the statutory range. Therefore, he cannot
demonstrate a miscarriage of justice so as to permit a § 2241 petition.
For the foregoing reasons, Michael Lumbert’s Petition for Writ of Habeas
Corpus under 28 U.S.C. §2241 (Doc. 1) is DENIED.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
United States District Judge
If petitioner wishes to appeal the dismissal or denial of his petition, he may
file a notice of appeal with this court within sixty days of the entry of judgment.
Fed. R. App. P. 4(a)(1)(B). A motion for leave to appeal in forma pauperis should
set forth the issues petitioner plans to present on appeal. See Fed. R. App. P.
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Fed. R. Civ. P. 59(e) must be filed no later than 28 days after the
entry of the judgment—a deadline that cannot be extended. A proper and timely
Rule 59(e) motion may toll the 60-day appeal deadline. Other motions, including
a Rule 60 motion for relief from a final judgment, order, or proceeding, do not toll
the deadline for an appeal.
It is not necessary for petitioner to obtain a certificate of appealability from
this disposition of his §2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
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