Wadlington v. Werlich

Filing 4

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 7/17/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EUKA WADLINGTON,
No. 10296-424,
Petitioner,
vs.

–449-DRH

T.G. WERLICH
Defendants.

MEMORANDUM AND ORDER

Pro se Petitioner Euka Wadlington, currently incarcerated at 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 1 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
district court judge, “[i]f it plainly appears from the petition and any attached
1

Page 6 of the Petition indicates that the prior convictions include delivery of a controlled
substance and possession with intent to deliver a controlled substance. Page 3 of the Petition
indicates that both prior convictions were for delivery of a controlled substance in violation of 720
ILCS 520/401. Petitioner identifies the following criminal case numbers from the Circuit Court of
Cook County, Illinois: 88-cr-1839101 and 90-cr-1154801.

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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 2
In 1998, Petitioner was indicted in the Southern District of Iowa for
conspiracy to distribute and possess with intent to distribute cocaine and crack
cocaine, and for attempted distribution of crack cocaine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1) (Case No. 3:98-cr-242). The case proceeded to trial on April
26, 1999. On May 10, 1999, the jury returned a verdict convicting Petitioner on
the conspiracy and attempted distribution counts and acquitting him on the
actual distribution count. On August 5, 1999, the District Court sentenced
Petitioner to concurrent life sentences and 10 years supervised release.
According to the Petition, Petitioner was sentenced as a career offender
pursuant to the United States Sentencing Guidelines (USSG) at § 4B1.1. The
sentencing enhancement was based on two prior Illinois controlled substance
convictions. 3

2

The following information is taken from the instant Petition and Petitioner’s appeals in the
Eighth Circuit. See U.S. v. Wadlington, 233 F.3d 1067 (8th Cir. 2000); Wadlington v. U.S., 428
F.3d 779 (8th Cir. 2005).
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Page 6 of the Petition indicates that the prior convictions include delivery of a controlled
substance and possession with intent to deliver a controlled substance. Page 3 of the Petition
indicates that both prior convictions were for delivery of a controlled substance in violation of 720

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Petitioner filed a direct appeal in September 1999.

The Eighth Circuit

Court of Appeals affirmed Petitioner’s judgment and sentence on December 1,
2000. U.S. v. Wadlington, 233 F.3d 1067 (8th Cir. 2000). Thereafter, Petitioner’s
request for a rehearing was denied.
Petitioner then challenged his sentence under 28 U.S.C. § 2255.

The

district court denied the § 2255 petition on September 12, 2005. Following its
denial of the § 2255 petition, the district court granted Petitioner’s request for a
certificate of appealability on (1) whether Petitioner was actually innocent, and (2)
whether Blakely applies to cases brought under § 2255.

The Eighth Circuit

affirmed the denial of Petitioner’s § 2255 petition on November 14, 2005.

Wadlington v. U.S., 428 F.3d 779 (8th Cir. 2005).
The Petition
Petitioner argues that, in light of Mathis, his prior Illinois drug offense
convictions

do

not

qualify

enhancement. (Doc. 1, p. 3).

as

predicate

offenses

for

a

career-criminal

Petitioner asks the Court to vacate his sentence

and remand for re-sentencing without the enhancement. (Doc. 1, p. 10).
D
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
ILCS 520/401. Petitioner identifies the following criminal case numbers from the Circuit Court of
Cook County, Illinois: 88-cr-1839101 and 90-cr-1154801.

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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,
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

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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).
In Mathis v. United States,–– U.S. ––, 136 S. Ct. 2243, 195 L. Ed. 2d 604
(2016), 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,

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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. Accordingly, 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 (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 convictions), 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

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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
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 (on or before August 16,
2017). 4

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.

The response date ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only. See SDIL-EFR 3.

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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
provide such notice may result in dismissal of this action. See Fed. R. Civ. P.
41(b).
IT IS SO ORDERED.

Digitally signed by
Judge David R. Herndon
Date: 2017.07.17
15:59:46 -05'00'

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