Rhodes v. Warden

Filing 26

ORDER denying 23 Motion to Dismiss for Failure to State a Claim. Respondent shall answer the § 2241 petition (Doc. 1) or otherwise plead within thirty days of the date this Order is entered. Signed by Judge David R. Herndon on 9/25/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY EUGENE RHODES,
Petitioner,
vs.

Case No. 17−cv–562−DRH

WARDEN, USP MARION
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court on Respondent’s Motion to Dismiss for
Failure to State a Claim, filed on July 26, 2018. (Doc. 23). Petitioner filed a
response to the motion on August 8, 2018, (Doc. 25), and the motion is now ripe
for disposition.

For the following reasons, Respondent’s Motion to Dismiss is

DENIED. (Doc. 23).
Introduction and Procedural History
Petitioner brought this action on May 30, 2017. (Doc. 1). Petitioner argues
that the continuing use of his prior convictions for second degree burglary in
Oklahoma to enhance his sentence under the Armed Career Criminal Act (ACCA)
and the career offender sentencing guidelines violates his constitutional rights in
light of the holding of Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016). (Doc.
1, p. 2); see also United States v. Rhodes, 01-cr-0202-R (W.D. Okla.).
Specifically, Petitioner argues that the elements of Oklahoma second degree
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burglary are more broad than “generic” burglary under the ACCA and the career
criminal guidelines in light of Mathis. (Doc. 1, p. 6). He also argues that the
residual clause is unconstitutional in light of Johnson v. United States, 135 S.Ct.
2251 (2015). Id.
Petitioner filed a direct appeal of his conviction, which was denied on April
23, 2003. (Doc. 1, p. 2). Petitioner’s request for certiorari was denied on October
6, 2003. (Doc. 1, p. 3). After he exhausted his direct appeal, Petitioner filed a §
2255 motion in the district court, alleging that he was denied effective assistance
of counsel. (Doc. 1, p. 4). That petition was denied on January 5, 2005. Id.
In 2010, Petitioner moved the 10th Circuit to allow him to file a second or
successive § 2255 motion, but the request was denied. Id.
Petitioner filed a successive § 2255 motion citing Johnson on May 13,
2016. (Doc. 1, p. 6) (Doc. 23, p. 4)1. He simultaneously filed a motion in the
appellate court seeking leave to file the § 2255 motion, which the appellate court
granted on July 12, 2016. (Doc. 23, p. 4). The district court then denied the §
2255 motion on April 18, 2017. Id. Petitioner appealed the denial of his § 2255
motion on April 27, 2017, but then went ahead and filed this action while the
appeal was pending.

Id.

After a brief stay of this matter, the 10th Circuit

ultimately affirmed the district court’s denial of the § 2255 Petition. (Doc. 23,
pp.4-5).

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Respondent argues that this motion raised Mathis, but it was filed prior to the Mathis
decision. It appears that Petitioner raised Mathis for the first time in his reply brief.

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The Motion
Respondent argues that the Petition fails to state a claim because Petitioner
has not triggered the savings clause in § 2255(e), so as to properly invoke § 2241.
(Doc. 23, pp. 7-8).

Respondent characterizes the Petition as “rel[ying] on the

authority of Mathis v. United States, 579 U.S. --, 136 S.Ct. 2243 (2016) to claim
that his sentence is improper in light of the Supreme Court’s decision in Johnson
v. United States, 135 S.Ct. 2551 (U.S. 2015).” (Doc. 23, p. 2).
Respondent argues that Petitioner has failed to satisfy the savings clause
because he relies on a decision that he has already invoked in a § 2255
proceeding, specifically Johnson.

(Doc. 23, p. 6).

Because Petitioner has

previously raised Johnson, Respondent argues that this matter should be
dismissed. Id.
Petitioner responds by arguing that Respondent misrepresents his Petition,
and the circumstances surrounding the denial of his previous § 2255 proceeding.
(Doc. 25, p. 1). Petitioner asserts that he only relies on Mathis, and not Johnson.
Id. He goes on to argue that he was precluded from raising Mathis in the prior
proceeding, which justifies his current Petition under the savings clause. (Doc.
25, p. 2). Moreover, since his appeal of the result of the § 2255 proceeding was
denied, the 10th Circuit has decided Hamilton, which found that the Oklahoma
burglary statute is broader than the generic version of burglary.
States v. Hamilton, 889 F.3d 688, 693 (10th Cir. 2018).

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Id.

United

Discussion
The Motion to Dismiss must be denied because Respondent has
mischaracterized the nature of the Petition. Respondent argues that Petitioner
has not triggered the savings clause because he invokes a case that he has already
cited to in a § 2255 proceeding, specifically Johnson.

Johnson discusses

vagueness considerations with regards to the residual clause of the ACCA. 135
S.Ct. 2551 (2015). It is true that Petitioner’s most recent § 2255 motion relied on
that issue.
But this case addresses a distinct issue–whether the Oklahoma state
burglary statute is broader than the generic crime of burglary. This implicates the
enumerated clause of the ACCA, not the residual clause.

The 10th Circuit’s

decision on Petitioner’s prior appeal found that Petitioner had been sentenced
under the ACCA under the enumerated clause, consequently denying his appeal
under Johnson because the residual clause was not implicated. United States v.
Rhodes, 721 F. App’x 780, 782 (10th Cir. 2018). In a footnote, the appellate
court cited the previous case controlling the application of the enumerated clause,
Taylor v. United States, 495 U.S. 575, 598 (1990), and then went on to note that
it expressed no opinion regarding Mathis’ application. Rhodes, 721 F. App’x at
782, n. 2.
Moreover, Petitioner’s § 2255 motion clearly rested on Johnson. It appears
that Petitioner raised Mathis in his reply, but the district court declined to

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address that issue because it found that Mathis did not invoke a new rule of
constitutional law. United States v. Rhodes, CIV-16-799-R, 2017 WL 1393743 at
*2 (W. D. Okla. Apr. 18 2017).

One fundamental difference between § 2255

motions and § 2241 petitions is that § 2241 provides a vehicle to raise new cases
of statutory construction that have been deemed retroactive. So while it may have
been correct for a district court hearing a successive § 2255 motion to decline to
address the application of Mathis, it does not follow that the issue may not be
raised in a § 2241 petition. Moreover, despite a fleeting reference to Johnson, this
Petition clearly relies on Mathis.

Mathis raises a distinct legal issue from

Johnson, although the two both address the proper interpretation of the ACCA.
The Court finds that Petitioner has raised a distinct issue from his prior habeas
proceeding. Accordingly, the invocation of Johnson in his prior proceeding does
not preclude him from triggering the savings clause with respect to this action
because he relies on Mathis.
IT IS HEREBY ORDERED that Respondent’s Motion to Dismiss is
DENIED.

Respondent shall answer the § 2241 petition (Doc. 1) or otherwise

plead within thirty days of the date this Order is entered.
IT IS SO ORDERED.

Judge Herndon
2018.09.25
14:31:13 -05'00'
United States District Judge

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