Nesby v. True

Filing 3

MEMORANDUM AND ORDER: 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. Signed by Judge David R. Herndon on 7/6/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY A. NESBY,
No. 05328-025,
Petitioner,
vs.

Case No. 17-cv-542-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 prior Illinois convictions for drug offenses
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
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

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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
Petitioner was tried before a jury and convicted in this Court of conspiracy
to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and 846. (Doc. 1, p. 2); United States v. Nesby, Case No. 01-cr-40047JPG (S.D. Ill.). On October 3, 2002, he was sentenced to life in prison. Id. The
conviction and sentence were affirmed on appeal, and the Supreme Court denied
his petition for certiorari on October 6, 2003. (Doc. 1, p. 2).
On October 4, 2004, Petitioner filed a motion under 28 U.S.C. § 2255, in
which he challenged the enhancement of his sentence to life, as well as claimed
ineffective assistance of counsel.

Nesby v. United States, Case No. 04-cv-4203

(S.D. Ill.). That motion and another filed on November 10, 2004 (Case No. 04-cv4235), was denied. (Doc. 1, pp. 2-3).
On October 28, 2016, Petitioner was notified that he had been granted
executive clemency as to the life sentence.

This executive action reduced his

sentence to a term of 360 months. Id.; (Doc. 254 in criminal case).
The Petition
Petitioner argues that under Mathis v. United States, 136 S. Ct. 2243
(2016), his criminal history level should be adjusted to exclude his 3 drug-related
state convictions as predicate offenses for purposes of enhancement of his

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sentence. These convictions were in Will County, Illinois: Case No. 89-CF-922 for
Unlawful Possession of a Controlled Substance; Case No. 91-CF-3111 for
Unlawful Possession of a Controlled Substance; and Case No. 96-CF-5455 for
Unlawful Delivery of a Controlled Substance. (Doc. 1, p. 3). He claims that the
Illinois statute which defines “delivery” of a controlled substance includes a
broader definition of the term than what is found in federal law.

For this

argument, he refers to 720 ILCS 570/102(h), 720 ILCS 570/401, and 720 ILCS
570/407(b), and compares the language with Section 4B1.2 of the United States
Sentencing Guidelines (“USSG”).

(Doc. 1, pp. 9-12).

After Mathis, Petitioner

claims that his prior conviction(s), particularly the 1996 unlawful delivery case,
should no longer be used as a basis to enhance his sentence as a career offender.
He notes that if the enhancement were removed, the applicable sentencing range
under the USSG would be considerably less than the 360-month sentence that
resulted from the executive clemency. If he were re-sentenced under the revised
guideline range, Petitioner believes he could be eligible for release based on time
he has already served. (Doc. 1, p. 14).
Additionally, Petitioner asserts that his acceptance of the commuted
sentence should not foreclose his ability to bring a collateral challenge to the
sentence he is continuing to serve. (Doc. 1, pp. 13-14).
Petitioner requests the Court to eliminate his “career offender” status
pursuant to Mathis so that he may be re-sentenced under the USSG without the
enhancement. (Doc. 1, p. 15).

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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
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 enhanced 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

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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
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 previous Illinois drug
convictions should not have been counted as “controlled substance offenses”
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

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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, 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 2004, 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, Petitioner asserts that the increase in the calculation of his
guideline sentencing range based on the career-criminal enhancement resulted in
a significantly higher range (and a higher sentence) than would have resulted
without the enhancement. If so, this could be deemed a miscarriage of justice.

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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
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 still-developing 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. This preliminary order
to respond does not, of course, preclude the Government from raising any

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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.
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).

Digitally signed by
Judge David R. Herndon
Date: 2017.07.06
12:21:50 -05'00'

IT IS SO ORDERED.
Dated: July 6, 2017

United States District Judge

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