Davis v. USA

Filing 3

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 6/13/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA L. DAVIS,
No. 39224-424,
Petitioner,
vs.

Case No. 17-cv-379-DRH

USA,
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) and other recent decisions, he argues that his two prior
Illinois state convictions (one for delivery of a controlled substance, and the other
for aggravated discharge of a firearm) 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
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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
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 September 2009, Petitioner pled guilty to 2 counts of a 6-count
indictment – Count 1, for distribution of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1), and Count 6, for possessing firearms and ammunition as a felon, in
violation of 18 U.S.C. § 922(g)(1). (Doc. 1, p. 4-5); United States v. Davis, Case
No. 08-cr-50026 (N.D. Ill., Doc. 57).

Because Petitioner had previously been

convicted in Whiteside County, Illinois, of aggravated discharge of a firearm (Case
No. 94-CF-75) (which qualifies as a crime of violence), and delivery of a controlled
substance (Case No. 98-CF-158), the court sentenced him as a career offender
pursuant to the United States Sentencing Guidelines (USSG) at § 4B1.1.

The

advisory sentencing range under the USSG was 262-327 months, with a statutory
minimum sentence of 10 years.

(Doc. 57 in criminal case, pp. 9-11).

On

December 14, 2009, Petitioner was sentenced to a below-guidelines term of 240
months on Count 1, to run concurrently to a 120-month sentence on Count 6.
(Doc. 69 in criminal case).

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On January 18, 2011, the Seventh Circuit dismissed Petitioner’s direct
appeal after his counsel filed an Anders brief. (Doc. 94 in criminal case). In
2012, Petitioner filed a motion for reduction of sentence pursuant to 18 U.S.C.
§ 3582, which was unsuccessful. (Docs. 108-109 in criminal case).
Subsequently, Petitioner made several attempts to challenge his sentence
pursuant to 28 U.S.C. § 2255. His initial § 2255 motion was denied as untimely.

United States v. Davis, No. 13-cv-50360 (N.D. Ill., March 18, 2014; Doc. 6). In the
order denying relief, the court discussed Petitioner’s challenge to his career
offender classification, finding that even if the § 2255 challenge had been timely, it
would have failed.
In 2016, Petitioner filed three applications with the Seventh Circuit, seeking
permission to file a second or successive § 2255 motion. Each was unsuccessful.
In Case Nos. 16-1726 and 16-3204, Petitioner attempted to challenge his careeroffender sentence under Johnson v. United States, 135 S. Ct. 2551 (2015). The
Seventh Circuit responded that Johnson was inapplicable because Petitioner was
not sentenced under the residual clause of the Armed Career Criminal Act. Davis

v. United States, No. 16-1726 (7th Cir. April 28, 2016, Doc. 6).

Further,

Petitioner’s conviction for aggravated discharge of a firearm was properly used as
a career-offender-qualifying conviction, because it included as an element the use,
threatened use, or attempted use of force. Id. (citing United States v. Womack,
732 F.3d 745, 748-49 (7th Cir. 2013). Petitioner also sought to challenge his
sentence under Mathis v. United States, 136 S. Ct. 2243 (2016), in Case Nos. 16-

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3204 and 16-3745.

In denying permission for a second/successive § 2255 in

those cases, the Seventh Circuit noted that Mathis did not meet the criteria to
form the basis for a sentence challenge in a § 2255 proceeding. Davis v. United

States, No. 16-3204 (7th Cir. Sept. 12, 2016, Doc. 2).
Following the Seventh Circuit’s rejection of the above applications,
Petitioner filed the instant action on April 12, 2017.
The Petition
Petitioner argues that the Illinois statutes under which he was convicted in
his prior drug and firearm offenses are “divisible,” and do not qualify as predicate
offenses for a career-criminal enhancement when analyzed using the “modified
categorical approach” as explained in United States v. Descamps, 133 S. Ct. 2276,
2281 (2013). (Doc. 1, pp. 1, 6-7). He invokes Mathis, 136 S. Ct. 2243, and
points to United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), as an example.
In Hinkle, the appellate court found that a Texas conviction for delivery of heroin
did not qualify as a “controlled substance offense” to trigger an enhanced careeroffender sentence under the USSG, because the state statute criminalized some
conduct that fell outside the USSG definition of a predicate controlled substance
offense.

Petitioner argues that his conviction for possession of a controlled

substance with intent to deliver, under 720 ILCS 570/401(c)(2), similarly should
not have been used to enhance his sentence. (Doc. 1, pp. 6-9). He claims the
statute includes the element of simple possession, which would not trigger the

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enhanced sentencing scheme, as well as delivery of a controlled substance, which
is a qualifying offense.
Based on these arguments, Petitioner requests the Court to vacate, set
aside, or correct his sentence. (Doc. 1, p. 11).
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
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,

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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
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 previous Illinois drug

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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 which 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,
2016, long after Petitioner’s § 2255 motion was denied on March 18, 2014, so
Petitioner could not have relied on Mathis 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

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(1974); Montgomery v. Louisiana, –– U.S. ––, 136 S. Ct. 718, 193 L. Ed. 2d 599
(2016)).
Finally, Petitioner asserts that the increase in the calculation of his
sentencing range based on the career-criminal enhancement (which relied on the
Illinois drug conviction as well as the firearm conviction), may have resulted in a
longer sentence. If so, this 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,
2017) (distiguishing Johnson v. United States, –– U.S. ––, 135 S. Ct. 2551
(2015)).
Given the limited record before the Court at this stage, and the stilldeveloping application of the Mathis decision, it is not plainly apparent that

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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. 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.
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

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provide such notice may result in dismissal of this action. See FED. R. CIV. P.

Digitally signed by
Judge David R.
Herndon
Date: 2017.06.13
16:52:22 -05'00'

41(b).
IT IS SO ORDERED.
Dated: June 13, 2017
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United States District Judge

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