Rhodes v. Warden

Filing 6

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 7/20/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY EUGENE RHODES,
No. 15025-064,
Petitioner,
vs.

Case No. 17-cv-562-DRH

WARDEN, USP-MARION,
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 Oklahoma.
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

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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 found guilty of several drug and firearms offenses after a jury
trial in the Western District of Oklahoma in 2002. (Doc. 1, p. 1); United States v.

Rhodes, Case No. 01-cr-202 (W.D. Okla.). On August 22, 2002, he was sentenced
to several concurrent terms of imprisonment, the longest being 260 months. Id.
Petitioner’s sentence was enhanced based on his prior Oklahoma state conviction
for second degree burglary. His federal conviction and sentences were affirmed
on direct appeal in 2003, and the Supreme Court denied his petition for

certiorari. (Doc. 1, pp. 2-3).
In 2004, petitioner filed a motion under 28 U.S.C.A § 2255, claiming that
he had been denied the effective assistance of counsel. (Doc. 1, p. 4). The motion
was denied. In 2010 and again in 2016, the Tenth Circuit denied petitioner leave
to file a second/successive § 2255 motion. (Doc. 1, pp. 4-5). In those actions,
petitioner attempted to challenge the enhancement of his sentence based on the
second degree burglary prior conviction.
The Petition
Petitioner filed this habeas action on May 30, 2017. In it, he asserts that a
conviction for second degree burglary in Oklahoma cannot be used as a predicate
offense to impose an enhanced career-criminal sentence, under either the Armed
Career Criminal Act (“ACCA”) or the United States Sentencing Guidelines

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(“USSG”).

He does not elaborate on whether his own enhanced sentence was

imposed pursuant to the ACCA or the USSG. (Doc. 1, p. 6).
Petitioner argues that the elements contained in the Oklahoma statute for
second degree burglary are more broad than the “generic” burglary elements as
explained in Mathis.

As a result, his prior conviction should not have been

considered a “crime of violence,” and his sentence was improperly enhanced in
light of the analysis in Mathis.

(Doc. 1, p. 6).

Petitioner seeks to have his

sentence vacated and remanded for resentencing without the armed career
criminal enhancement. (Doc. 1, p. 8).
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

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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
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

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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 Oklahoma second
degree burglary conviction should not have been counted as a prior conviction for
a “crime of violence” to enhance his sentence as a career criminal. 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. § 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 original § 2255 motion was denied in 2005, so

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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 260-month sentence imposed on petitioner, if it resulted from
the career-criminal 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

Mathis decision thus may or may not be applicable to petitioner’s sentence,
depending on whether his sentencing enhancement was determined based on the
advisory sentencing guidelines, or 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)).

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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. 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.
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

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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: 2017.07.20
10:24:03 -05'00'

IT IS SO ORDERED.
Dated: July 20, 2017

United States District Judge

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