Horton v. Werlich

Filing 3

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 7/19/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY L. HORTON,
Petitioner,
vs.

Case No. 17-cv-0523-DRH

T.G. WERLICH,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in FCI Greenville, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge his enhanced sentence as
a career offender under USSG § 4B1.1 based on a prior drug conviction. (Doc. 1,
p. 1).
Petitioner was sentenced to 300 months’ imprisonment on December 12,
2005 after pleading guilty to intentionally possessing cocaine base with intent to
distribute. (Doc. 1, pp. 3-4). Previously, petitioner filed a motion pursuant to 28
U.S.C. § 2255; the motion was denied on September 20, 2006. Horton v. United

States of America, 3:06-cv-388-jcs (W.D. Wis. September 20, 2006). Petitioner

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now argues that his conviction is improper pursuant to Mathis v. United States,
136 S.Ct. 2243 (2016). 1 (Doc. 1, p. 4).
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 argues that he should not have received an enhanced sentence
under the career offender sentencing guideline and that the use of a prior
conviction for marijuana possession for such purposes was improper. (Doc. 1, p.
1, 10-11).

Petitioner’s sentence was enhanced based on a prior conviction of

possession with intent to deliver marijuana in violation of Wisconsin state law.
(Doc. 1, p. 5). Petitioner argues that the Wisconsin statute is broader than the
relevant guideline provision and thus, violates Mathis v. United States, 136 S.Ct.
2243 (U.S. 2016). (Doc. 1, p. 6).

The Seventh Circuit has suggested in a footnote that Beckles v. United States, 137 S.Ct.
886 (2017) does not moot claims brought pursuant to Mathis v. United States, 136 S.Ct. 2243
(2016). 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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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
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 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

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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).
In his attempt to trigger application of the savings clause, petitioner relies
on: Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016). 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).

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Petitioner has also plausibly stated that his sentence enhancement may be a
miscarriage of justice.

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 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 tracks the ACCA quite closely. Although Mathis specifically addressed

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burglary with reference to the language in the “crime of violence” section, other
courts have applied the Mathis rationale to other aspects of the sentencing
guidelines. See United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) (applying

Mathis and concluding petitioner’s conviction for delivery of a controlled
substance was not a “controlled substance offense” within the meaning of the
Guidelines).

Here petitioner has argued that he was convicted under a state

possession statute, and when the Mathis analysis is applied to that statute, it will
be found to be broader than the generic crime of a controlled substance offense.
For that reason, the Court orders respondent Werlich to file a response so that
the Court may have the advantage of further briefing in deciding this issue.
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 State 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

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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.
IT IS SO ORDERED.

Digitally signed by
Judge David R.
Herndon
Date: 2017.07.19
17:05:48 -05'00'

Dated: July 19, 2017

United States District Judge

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