Welch v. True

Filing 6

ORDER DISMISSING CASE: IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) is DISMISSED with prejudice. Signed by Judge David R. Herndon on 6/16/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERIC WELCH,
Petitioner,
vs.

Case No. 17-cv-0478-DRH

WILLIAM TRUE,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Eric Welch, 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 under 18 U.S.C. § 2252A(b)(2) based
on a prior 2000 conviction in Michigan for attempted Misdemeanor FourthDegree Criminal Sexual Conduct. (Doc.1, p. 2);United States v. Welch, No. 2:10cr-0008-RAED (W.D. Mich.) (“criminal case”). The Petition was filed on May 8,
2017. (Doc. 1).
Petitioner was sentenced to 168 months’ imprisonment on December 20,
2010 after a jury trial. (Criminal Case, Doc. 59). Previously, Petitioner filed a
direct appeal, which was denied on October 20, 2011.

(Doc. 1, pp. 2-3).

Petitioner’s writ for certiorari was also denied. (Doc. 1, p. 3). Petitioner also filed
a Motion pursuant to 28 U.S.C. § 2255 seeking collateral review of his sentence.

Id. He also filed motions attacking the judgment. Id. The district court denied
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the motions and denied a certificate of appeal (“COA”). Id. The Sixth Circuit
likewise denied a COA. Id.
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 10 year mandatory
minimum imposed by 18 U.S.C. § 2252A(b)(2) and the level 5 enhancement
imposed by USSG § 2G2.2(b)(5). (Doc. 1, p. 31). He argues that the Supreme
Court’s decision in Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016) applies
and invalidates his sentence. (Doc. 1, p. 31). Specifically, Petitioner argues that
the Michigan state statute which served as a predicate offense for the purposes of
§ 2252A and § 2G2.2(b)(5) defines “sexual contact” more broadly than under
federal law. (Doc. 1, p. 13). Thus, Petitioner argues that the state conviction
should not have been considered pursuant to federal law and the sentencing
guidelines. Id.
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

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remedy typically supersedes the writ of habeas corpus. Brown v. Caraway, 719
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 a 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 three 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,

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719 F.3d 583, 586 (7th Cir. 2013) (citations omitted) (internal quotation marks
omitted).
In his attempt to trigger application of the savings clause, Petitioner relies
on a number of cases: Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016);

United States v. Dahl., 833 F.3d 345 (3d Cir. 2016); Kirk v. United States, No.
4:05-cr-520-GHD-DAS, 2016 WL 6476963 (N.D. Miss. November 1, 2016), and
other cases applying Mathis. 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.
Although the Petition discusses other cases, Mathis is the only case that is
relevant to the determination on whether the savings clause has been triggered.
The Court finds that Mathis is inapposite here because it addresses the Armed
Career Criminal Act, 136 S.Ct. 2243 (U.S. 2016), and, by extension, the
sentencing guidelines on armed career criminals located at U.S.S.G. § 4B1.2(b).
Other courts that have addressed this issue have found that Mathis is not
relevant. See United States v. Mayokok, 854 F.3d 987, 993 n. 2 (8th Cir. 2017)
(suggesting not only that Mathis may not be relevant to § 2252 but that the
language in that section significantly differs from the relevant language the Court
analyzed in the ACCA); see also Bueno v. United States, No. 16-cv-680, 2017 WL
193495 at *10 (E.D. Vir. January 17, 2017). Petitioner was not sentenced under
the ACCA or § 4B1.2(b).

He was sentencing for violating 18 U.S.C. §§

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2252A(a)(5)(B) and (b)(2); further his sentence was enhanced pursuant to
U.S.S.G. § 2G2.2(b)(5).

Mathis did not address the underlying statute or the

guideline at issue here.
Petitioner’s citation to other case law in an attempt to demonstrate the wide
application of Mathis is also unavailing. Dahl is not binding precedent in this
circuit, and more to the point, it analyzed the career sexual offender guideline, §
4B1.5, not § 2G2.2(b)(5). 833 F.3d 345, 349 (3d Cir. 2016). Kirk is likewise
unavailing, as it is a decision of a court outside this circuit and an analysis of the
ACCA, which is not at issue here. Plaintiff’s other citations do not address crimes
similar to his predicate crime.
Plaintiff has not demonstrated that the savings clause has been triggered
here because Mathis is not relevant to his situation. Accordingly, the Court will
dismiss this case with prejudice.
Disposition
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is DISMISSED with prejudice.
If Petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this Court within thirty days of the entry of judgment.

Fed. R. App. P.

4(a)(4). 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. 24(a)(1)(C).

If

Petitioner does choose to appeal and is allowed to proceed IFP, he will be
required to pay a portion of the $505.00 appellate filing fee in order to pursue his

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appeal (the amount to be determined based on his prison trust fund account
records for the past six months) irrespective of the outcome of the appeal. See
Fed. R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999);

Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day1 appeal
deadline. It is not necessary for petitioner to obtain a certificate of appealability.

Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: June 16, 2017

Digitally signed by
Judge David R. Herndon
Date: 2017.06.16
11:57:16 -05'00'
United States District Judge

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