Nesby v. True

Filing 11

ORDER granting 7 Motion to Dismiss Case for Lack of Jurisdiction. The Court DISMISSES for lack of jurisdiction this matter. The Clerk of the Court shall enter judgment. Signed by Judge David R. Herndon on 11/14/2017. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY A. NESBY,
Petitioner,
vs.

Civil No. 17-cv-542-DRH-CJP

B. TRUE,

Respondent.
MEMORANDUM and ORDER

HERNDON, District Judge:
Petitioner Larry A. Nesby filed a petition for writ of habeas corpus under 28
U.S.C. §2241 (Doc. 1) challenging the enhancement of his sentence as a career
offender under U.S.S.G. § 4B1.1. He purports to rely on Mathis v. United States,
136 S. Ct. 2243 (2016). Now before the Court is Respondent’s Motion to Dismiss
Petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 for
Lack of Jurisdiction, Doc. 7. Petitioner responded to the motion at Doc. 10.
Respondent argues that the petition must be dismissed because petitioner’s
sentence was commuted by presidential order.
Relevant Facts and Procedural History
Petitioner was convicted of two counts of conspiracy to distribute in excess
of 50 grams of crack cocaine in the Southern District of Illinois and was
sentenced to life imprisonment.

United States v. Nesby, Case No. 01-cr-

40047JPG.
Prior to trial, the government filed an information pursuant to 21 U.S.C. §

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851stating that Nesby had been convicted of three prior qualifying felony drug
offenses. Doc. 7, Ex. 3.
The presentence investigation report stated that Nesby was a career
offender under U.S.S.G. § 4B1.1, and that his Guidelines sentencing range was
360 months to life imprisonment. Doc. 6. The sentencing court adopted those
findings. Ex. 2. However, because of the § 851 enhancement, he was subject to a
mandatory minimum sentence of life imprisonment on each count. In October
2002, he was sentenced to two concurrent terms of life imprisonment. Ex. 2.
Nesby filed a direct appeal and a number of unsuccessful collateral attacks,
which are described in respondent’s motion.

He also filed an application for

executive clemency, which met with more success. In October 2016, President
Obama commuted his sentence to a term of 360 months imprisonment.

Ex. 4.

P.3.
Analysis
Ostensibly relying on Mathis v. United States, 136 S. Ct. 2243 (2016),
Nesby argues that his prior drug conviction for unlawful delivery of a controlled
substance in violation of 720 ILCS 570/401(d) does not qualify as a controlled
substance offense for purposes of the career offender enhancement under
U.S.S.G. § 4B1.2. The merits of his argument are doubtful. The Seventh Circuit
rejected an identical argument in United States v. Redden, ___ F.3d ___, 2017 WL
5162587 (7th Cir. November 8, 2017). In addition, he ignores the fact that he
was subject to a mandatory minimum sentence of life imprisonment because of

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the § 851 enhancement; his argument that he should not have been classified as a
career offender has no relevance to the § 851 enhancement. However, respondent
is correct that this Court has no jurisdiction to consider a collateral attack on a
sentence imposed by order of the executive and that this case is moot.
Article II, § 2 of the United States Constitution provides that the President
“shall have Power to grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.” The Supreme Court has interpreted the
“broad power” conferred by the Constitution “to allow plenary authority in the
President to ‘forgive’ the convicted person in part or entirely, to reduce a penalty
in terms of a specified number of years, or to alter it with conditions which are in
themselves constitutionally unobjectionable.” Schick v. Reed, 95 S. Ct. 379, 385
(1974). Significantly, the Supreme Court has held that “the pardoning power is
an enumerated power of the Constitution and that its limitations, if any, must be
found in the Constitution itself.” Ibid. Therefore, this Court has no jurisdiction
to consider the propriety of the 360 month sentence set by the President.
Further, petitioner’s challenge to his original life sentence is now moot
because he is no longer serving that sentence. Any opinion rendered by this Court
as to the validity of the original life sentence would be nothing more than an
advisory opinion. Article III, §2 limits the jurisdiction of a federal court to live
“Cases” and “Controversies.”

“[C]ases that do not involve ‘actual, ongoing

controversies’ are moot and must be dismissed for lack of jurisdiction.”
Federation of Advertising Industry Representatives v. Chicago, 326 F.3d 924,

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929 (7th Cir. 2014).
Petitioner anticipated respondent’s argument.

In his petition, he cited

Simpson v. Battaglia, 458 F.3d 585 (7th Cir. 2006), and Madej v. Briley, 371
F.3d 898 (7th Cir. 2004), for the proposition that the commutation of his
sentence does not render his petition moot. See, Doc. 1, p. 14. However, those
cases did not involve Presidential commutation of federal sentences.

Both of

those cases involved challenges under 28 U.S.C. § 2254 to death sentences
imposed by the state. In both cases, the death sentences were commuted by the
Illinois governor to life in prison. The Seventh Circuit held that the cases were
not rendered moot by the governor’s commutation because of the supremacy of
the federal constitution.

“Although the state contends that the Governor’s

commutation bars that option as a matter of state law, the Constitution
supersedes any incompatible state principles.” Madej, 371 F3d at 899. “More
importantly, Illinois does not point to a federal standard in which executive
clemency at the state level operates to limit the reach of federal habeas review.”
Simpson, 458 F.3d at 596 (emphasis in original). In addition, the petitioners in
those case raised federal constitutional challenges to their state sentences, but
Nesby does not argue that his life sentence was unconstitutional.

Therefore,

Simpson and Madej have no application here.
Conclusion
For the foregoing reasons, Respondent’s Motion to Dismiss Petitioner’s
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 for Lack of

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Jurisdiction (Doc. 7) is GRANTED.
The Petition for a Writ of Habeas Corpus under 28 U.S.C. §2241 (Doc. 1) is
DISMISSED WITHOUT PREJUDICE.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.

Judge Herndon
2017.11.14
15:29:09 -06'00'
United States District Judge

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Notice
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within sixty days of the entry of judgment. Fed. R. App.
P. 4(a)(1)(B). 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).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Fed. R. Civ. P. 59(e) must be filed no later than 28 days after the
entry of the judgment—a deadline that cannot be extended. A proper and timely
Rule 59(e) motion may toll the 60-day appeal deadline. Other motions, including
a Rule 60 motion for relief from a final judgment, order, or proceeding, do not toll
the deadline for an appeal.
It is not necessary for petitioner to obtain a certificate of appealability from
this disposition of his §2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
Cir. 2000).

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