Zweigart II v. True

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 5/26/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN A. ZWEIGART II,
Petitioner,
vs.

Case No. 17-cv-0445-DRH

B. TRUE,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the United States Penitentiary Marion,
brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge his
enhanced sentence as a career offender following his guilty plea to a count of
conspiracy

to

methamphetamine.

manufacture

a

mixture

and

substance

containing

United States v. Steven A. Zweigart, II No. 12-cr-40103-

JPG-1 (S.D. Ill. 2012) (“criminal case”). The petition was filed on April 28, 2017.
(Doc. 1).
Petitioner was sentenced to 163 months’ imprisonment as a Career
Offender on August 15, 2013. (Doc. 1, p. 9). Previously, petitioner filed a motion
pursuant to 28 U.S.C. § 2255, arguing that his attorney was ineffective in
challenging the sufficiency of the factual basis for his career offender status. (Doc.
1, p. 10); Zweigart II v. True, No. 14-cv-944-JPG. (S.D. Ill. 2014) That petition
was ultimately denied on March 31, 2015. Id. Petitioner’s appeal to the Seventh
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Circuit was denied in light of Beckles v. United States, 137 S.Ct. 886 (2017).
(Doc. 1, pp. 10-11). 1
Rule 4 of the Rules Governing § 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 corpus cases.
The Petition
Petitioner asks that he be resentenced without the Career Offender
enhancement. (Doc. 1, p. 21). Petitioner asserts that his predicate offenses were
1) DUI; 2) Poss. Of Meth. Manufacturing Chemicals; 3) Telephone Harassment; 4)
Domestic Battery; 5) Felony Domestic Battery. (Doc. 1, p. 11).

In particular,

petitioner challenges the use of the possession of meth manufacturing materials
as a predicate offense involving a controlled substance and the use of the felony
domestic battery count as a violent felony. (Doc. 1, pp. 11-23).
Discussion
Ordinarily, a prisoner may challenge his federal conviction or sentence only
by means of a § 2255 motion brought before the sentencing court, and this
remedy typically supersedes the writ of habeas corpus. Brown v. Caraway, 719
1

The Seventh Circuit has suggested in a footnote that Beckles does not moot claims
brought pursuant to Mathis v. United States, 136 S.Ct. 2243. United States v. Lynn, 851 F.3d
786, 795 n. 17 (7th Cir. 2017) (“Moreover, in Beckles, the Court does not, in any way, suggest that
the categorical approach and modified categorical approach [discussed in Mathis], which it
employs when analyzing the ACCA, does not apply with equal force to the language of § 4B1.2.”)

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F.3d 583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir.
2012)). A writ of habeas corpus under § 2255 requires the petitioner to file his
challenge in the district that imposed the criminal sentence on him.
U.S.C. § 2255(a).

See 28

In this case, petitioner is clearly attacking his sentence.

However, he has alleged that he has already filed a motion pursuant to § 2255,
and that remedy is no longer available to him without leave of the appellate court.
The “savings clause” under § 2255(e) allows a federal prisoner to file a
petition under § 2241, if the remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e).

In

considering what it means to be “inadequate or ineffective,” the Seventh Circuit
has held that a federal prisoner should be permitted to seek relief under § 2241
“only if he had no reasonable opportunity to obtain earlier judicial correction of a
fundamental defect in his conviction or sentence because the law changed after
his first 2255 motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). A
federal prisoner must meet 3 criteria in order to invoke the Savings Clause and
obtain collateral relief pursuant to § 2241. First, a prisoner “must show that he
relies on a [new] statutory-interpretation case rather than a constitutional case;”
second, he “must show that he relies on a retroactive decision that he could not
have invoked in his first § 2255 motion;” and third, “[the] sentence enhancement
[must] have been a grave enough error to be deemed a miscarriage of justice
corrigible therefore in a habeas corpus proceeding.” Brown v. Caraway, 719 F.3d
583, 586 (7th Cir. 2013) (citations omitted) (internal quotation marks omitted).

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In his attempt to trigger application of the savings clause, petitioner relies
on 4 cases: Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016); Begay v. United
States, 553 U.S. 137 (2008); United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016); United States v. Aviles-Solarzano, 623 F.3d 470 (7th Cir. 2010).

Mathis

addresses the “enumerated clause” of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e); specifically it addresses what test a court should apply when
determining whether a state conviction falls within the enumerated crimes clause.
Petitioner has met the first two requirements to bring a § 2241 case.
Mathis is a case of statutory interpretation. 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.”); 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. The Seventh Circuit has
indicated that Mathis is a substantive rule. Dawkins, 829 F.3d at 551 (7th Cir.
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 third element is problematic. In Mathis, the Supreme Court discussed
the correct approach to applying the enumerated clause in the ACCA. 136 S.Ct.
2243 (U.S. 2016).

A prior crime qualifies as a predicate offense only if its

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elements are the same as, or narrower than, those of the generic offenses listed in
the statute. Id. at 2247. When a statute is indivisible, a court can determine
whether the crime counts as an ACCA predicate by lining up the crime’s elements
alongside those of the generic offense to see if the elements match. Id. at 2248.
In the case of a divisible statute, where the statute lists elements in the alternative,
a court employs a “modified categorical approach” by which the court may
examine a limited class of documents to determine what crime, with what
elements, the defendant was convicted of. Id. at 2249. Mathis stands for the
proposition that when a statute enumerates various facts that meet an element of
the crime, a court must still apply the categorical approach, without reference to
the facts of the specific case. Id. at 2251. That is, if the statute is indivisible, but
specifies that certain alternative facts may satisfy an element, a court cannot look
to the facts of the case to determine whether the conduct involved satisfied the
generic version of the crime if the state statute involved is broader than the
generic version. Id.
The Sentencing Guidelines, like the ACCA, also refer to specific crimes as
grounds for sentencing enhancements. Some of the language of the Sentencing
Guidelines track the ACCA quite closely. However, Mathis specifically addressed
burglary with reference to the language in the “crime of violence” section.

In

contrast, petitioner’s sentence was enhanced in part because he had predicate
“controlled substance offenses.”
A “controlled substance offense” is defined in the guideline as:

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[A]n offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits the
manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of
a controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or disperse.
U.S.S.G.§ 4B1.2(b).
Petitioner also takes issue with the application of the guidelines to his felony
domestic battery charge.

The government has argued that Illinois Domestic

Battery is a crime of violence under the “force clause” of U.S.S.G. § 4B1.2(a)(1).
Petitioner argues that the Illinois domestic battery statute contains two alternative
means, one of which does not require the use of physical force, which makes the
statute broader than the force clause of § 4B1.2.
It is a dubious proposition whether Mathis controls here. Petitioner has
cited to at least one case, Hinkle, 832 F.3d at 569 (5th Cir. 2016), where a court
used the approach outlined in Mathis to evaluate the controlled substance offense
at issue. Of course that decision is not binding on this Circuit. But for current
purposes, the Court is willing to accept that the Hinkle case at least demonstrates
that the law in this area is developing.

It is also plausible the Mathis could

potentially change the analysis of petitioner’s predicate crime of violence, even
though the crime at issue there is domestic battery, not burglary. For that reason,
the Court orders respondent True to file a response so that the Court may have
the advantage of further briefing in deciding this issue.

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IT IS HEREBY ORDERED that respondent shall answer the petition 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
making whatever waiver, exhaustion, or timeliness argument 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 Clifford J. 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 days after a transfer or other change in address occurs.

Judge Herndon
2017.05.26
10:58:34 -05'00'

IT IS SO ORDERED.
DATED: May 26, 2017

United States District Judge

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