Skannell v. True

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. IT IS HEREBY ORDERED that Respondent shall answer or otherwise plead within thirty days of the date this order is entered (on or before July 28, 2017). ( Action due by 7/28/2017.). Signed by Judge David R. Herndon on 6/28/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TONY SKANNELL,
No. 25179-112,
Petitioner,
vs.

Case No. 17-cv-522-DRH

B. TRUE,
Respondent.

MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner, currently incarcerated in the USP-Marion, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of
his confinement. He asserts that in light of Mathis v. United States, –– U.S. ––,
136 S. Ct. 2243, 2250 (2016), his sentence was wrongfully enhanced based on a
prior conviction in California.
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
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
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preliminary review under Rule 4 and Rule 1(b).
Background
In May 2004, Petitioner was found guilty by a jury in the District of
Nebraska, of conspiracy to distribute cocaine base. (Doc. 1, p. 3). United States

v. Skannell, Case No. 02-cr-353 (D. Neb.). The trial court found that he was a
career offender within the meaning of the United States Sentencing Guidelines
(USSG) § 4B1.1, based on his prior convictions. The conviction at issue in the
instant Petition is for a “crime of violence” as defined in USSG § 4B1.2;
specifically, a conviction in California for second degree attempted robbery. (Doc.
1, pp. 2-3). Petitioner was sentenced to 360 months, which was the minimum of
the

guideline

sentencing

range

after

application

of

the

career offender

enhancement. (Doc. 1, p. 3).
On direct appeal, the appellate court ordered the matter remanded for
resentencing purusant to United States v. Booker, 543 U.S. 220 (2005). Upon
remand, the trial court imposed the same sentence, which was then upheld on
appeal. (Doc. 1, p. 4). Petitioner’s motion for relief under 28 U.S.C. § 2255 was
denied. In 2011 and 2014, following the crack cocaine sentencing amendments,
Petitioner unsuccessfully moved for reductions in his sentence. Id.
After the Supreme Court issued its ruling in Johnson v. United States, ––
U.S. ––, 135 S. Ct. 2551 (2015), Petitioner sought leave to file a successive § 2255
motion, but was denied. (Doc. 1, p. 4).

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The Petition
Petitioner filed this habeas action on May 17, 2017.

He invokes the

“savings clause” of 28 U.S.C. § 2255(e), noting that he could not have brought his

Mathis challenge in his original § 2255 motion, because the Mathis opinion had
not yet been issued. (Doc. 1, pp. 4-5).
Petitioner argues that his California conviction for second degree attempted
robbery under Cal. Penal code § 211, after Mathis, does not meet the definition of
a “crime of violence” within the meaning of USSG § 4B1.2(a)(2). (Doc. 1, pp. 1115). The California statute criminalizes the felonious taking of property by force
or fear. (Doc. 1, p. 15). The “fear” element includes the “fear of an unlawful
injury to the person or property of the person robbed . . . .” Id. Petitioner argues
that the inclusion of a taking of property by placing the victim in fear of his

property broadens the criminal conduct beyond the “generic” version of robbery
to include conduct that cannot be considered “violent” within the meaning of the
career-criminal sentencing guidelines. (Doc. 1, pp. 15-17).
As relief, Petitioner requests that he be resentenced without the career
offender enhancement.

He asserts that this would expose him to a sentence

within the range of only 140 to 175 months. (Doc. 1, p. 19).
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

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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).
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
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

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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 California attempted
robbery conviction should not have been counted as a prior conviction for a
“crime of violence” 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.

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§ 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 in October 2009 (see Doc.
720 in criminal case), 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 (1974); Montgomery v. Louisiana, –– U.S. ––, 136 S. Ct. 718,
193 L. Ed. 2d 599 (2016)).
Finally, the 360-month sentence imposed on Petitioner as a result of the
career-criminal guidelines enhancement is significant enough to warrant habeas
review as a possible miscarriage of justice. The Petition appears, therefore, to fall
within the savings clause, making § 2241 an appropriate vehicle to review his
claims.
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

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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
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 July 28,
2017). 1

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.
1

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: 2017.06.28
09:57:47 -05'00'

Dated: June 28, 2017

United States District Judge

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