Montana v. Werlich
MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. IT IS HEREBY ORDERED that Respondent Warden T. G. Werlich shallanswer the Petition or otherwise plead within thirty (30) days of the date thisorder is entered (on or before September 8, 2017). (Action due by 9/8/2017.) Signed by Judge David R. Herndon on 8/9/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
T. G. WERLICH,
Case No. 17-cv-584-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Darwin Montana, an inmate who is currently incarcerated in the
Federal Correctional Institution located in Greenville, Illinois (“FCI-Greenville”),
filed this habeas corpus action pursuant to 28 U.S.C. § 2241 in order to challenge
the constitutionality of his confinement. (Doc. 1). Relying on Mathis v. United
States, -- U.S. --, 136 S.Ct. 2243 (2016) and other recent decisions, Montana
asserts that his prior Illinois robbery conviction should not have been used to
impose an enhanced sentence under the career offender sentencing guidelines.
(Doc. 1, p. 1).
This matter is now before the Court for preliminary review of the habeas
petition. Rule 4 of the Federal Rules Governing Section 2254 Cases in United
States District Courts provides that upon preliminary consideration by the district
judge, “[i]f it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court, the
judge shall make an order for its summary dismissal and cause the petitioner to
be notified.” Rule 1(b) of those Rules gives this Court the authority to apply the
rules to other habeas corpus cases.
Without commenting on the merits of
Montana’s claims, the Court finds that the Petition survives preliminary review
under Rule 4 and Rule 1(b).
Following a jury trial on June 11, 1998, Montana was convicted of aiding
and abetting a bank robbery in which an accomplice used a firearm, in violation
of 18 U.S.C. §§ 2113 and 924(c). See United States v. Dodd, et al., No. 98-cr00054-2 (N.D. Ill. 1998) (Doc. 35) (“criminal case”). Montana was deemed to be a
career offender under U.S.S.G. §§ 4B1.1-.2 based upon a prior Illinois robbery
conviction. As such, he was sentenced to the Federal Bureau of Prisons for a
term of 262 months on Count 2 and a consecutive term of 60 months on Count 3.
(Doc. 72, criminal case). The sentence was affirmed on appeal. United States v.
Montana, 199 F.3d 947 (7th Cir. 1999).
Montana filed a motion pursuant to 28 U.S.C. § 2255 to challenge his
conviction and sentence. United States v. Montana, No. 01-cv-03098 (N.D. Ill.
2001) (Doc. 1). The district court dismissed the § 2255 Motion, and the Seventh
Circuit affirmed the decision.
(Docs. 8, 17).
Montana then filed a series of
motions for reduction of sentence, which were all denied.
In 2014, Montana filed a Petition for Writ of Habeas Corpus Pursuant To 28
U.S.C. § 2241. See Montana v. Cross, No. 14-cv-1019-DRH (S.D. Ill. 2014) (Doc.
1) (first § 2241 Petition). He attacked his conviction under § 924(c) for use of a
firearm in a crime of violence based on the Supreme Court’s decision in United
States v. Rosemond, 134 S.Ct. 1240 (2014). The district court dismissed the first
§ 2241 Petition on the merits at screening because it did not trigger the “savings
clause” under § 2255(e). The district court’s decision was affirmed on appeal.
Montana v. Cross, App. No. 14-3313, 2016 WL 3910054 (7th Cir. July 19, 2016)
The following year, Montana filed another Petition for Writ of Habeas
Corpus Pursuant To 28 U.S.C. § 2241. Montana v. Cross, No. 15-cv-00470-DRHCJP (S.D. Ill. 2015) (Doc. 1) (second § 2241 Petition).
In the second § 2241
Petition, he challenged the loss of good conduct credit resulting from an adverse
disciplinary ruling. (Doc. 1). The case is currently pending. (Doc. 4).
Following the United States Supreme Court’s decision in Johnson v. United
States, -- U.S. --, 135 S.Ct. 2551 (2015), Montana sought permission from the
Seventh Circuit Court of Appeals to file a second or successive § 2255 Motion.
Montana v. United States, App. No. 16-1374 (7th Cir. 2016) (Doc. 1). In an Order
dated March 15, 2016, the Seventh Circuit denied his application after concluding
that he did not qualify for relief because he was not sentenced under the residual
clause of the Armed Career Criminal Act that was deemed unconstitutional in
Johnson. (Doc. 7). His crime of conviction and two predicate offenses instead
qualified him for an enhanced sentence under the elements test in U.S.S.G. §
4B1.2(a)(1). Id. Because Montana’s sentence was “unaffected by Johnson,” his
request to challenge it on this basis was denied. Id.
Despite the Seventh Circuit’s ruling, Montana filed another Petition for Writ
of Habeas Corpus Pursuant To 28 U.S.C. § 2241 on May 23, 2016. Montana v.
Werlich, No. 16-cv-00564-DRH (S.D. Ill. 2016) (Doc. 1) (third § 2241 Petition). In
his third § 2241 Petition, Montana argued that his sentence was unconstitutional
under Johnson and Welch v. United States, 578 U.S. --, 136 S.Ct. 1257 (Apr. 18,
2016), because the ACCA’s residual clause was found unconstitutionally vague
and the holding was retroactively applicable. (Doc. 1). As such, the third § 2241
Petition triggered the “savings clause” of § 2255(e). The district court dismissed
the third § 2241 Petition on two grounds: (1) Montana relied on a case that
announced a new substantive rule of law and therefore fell within the scope of
§ 2255; and (2) the Seventh Circuit previously denied him leave to proceed with
an application to file a successive collateral attack under § 2255. (Doc. 5). The
Seventh Circuit affirmed the judgment of the district court on appeal. Montana v.
Werlich, App. No. 16-3066 (7th Cir. 2016) (Doc. 10). The fourth § 2241 Petition
In the instant § 2241 Petition, Montana challenges his enhanced sentence
under U.S.S.G. § 4B1.2(a)(1).
He maintains that his prior Illinois
robbery conviction, now codified at 720 ILCS § 5/18-1(a), no longer supports an
enhanced sentence under Mathis v. United States, 136 S.Ct. 2243 (2016) and
related cases. (Doc. 1, pp. 3-7).
Generally, a federally convicted person may challenge his conviction and
sentence by bringing a motion pursuant to § 2255 in the court that sentenced
him. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (citing Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012)). A § 2255 motion is ordinarily the “exclusive
means for a federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d
214, 217 (7th Cir. 2003). However, the statute generally limits a prisoner to one
challenge of his conviction and sentence under § 2255, and Montana has already
filed a § 2255 motion.
A prisoner may not file a “second or successive” motion unless a panel of
the appropriate court of appeals certifies that such motion contains either:
(1) newly discovered evidence “sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of the
offense;” or (2) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”
28 U.S.C. § 2255(h). Montana did not seek leave to file a second or successive
§ 2255 motion to pursue the arguments he now makes under Mathis because he
claims that he was foreclosed from doing so.
Section 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.” See 28 U.S.C. § 2255(e); United
States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
whether a remedy is “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). Section 2255 is
inadequate or ineffective when three requirements are met: (1) the petition relies
on a new case of statutory interpretation rather than a constitutional decision;
(2) the case was decided after his first § 2255 motion but is retroactive; and (3)
the alleged error results in a miscarriage of justice. Brown v. Caraway, 719 F.3d
at 586; Brown v. Rios, 696 F.3d at 640; Hill v. Werlinger, 695 F.3d 644, 645 (7th
Montana claims that he is one of those for whom the § 2255 motion is
inadequate or ineffective to test the legality of his detention. He relies on Mathis v.
United States, -- U.S. --, 136 S.Ct. 2243 (2016), Welch v. United States, 578 U.S. -, 136 S.Ct. 1257 (2016), and Begay v. United States, 553 U.S. 137 (2008), among
other cases. In Mathis, the Supreme Court held that an Iowa burglary statute
allowing for a conviction based on entry into a vehicle was too broad to qualify as
a “generic burglary,” which 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 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, satisfying the first Davenport
requirement. 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.”); 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
The § 2241 Petition also satisfies the second Davenport requirement.
Montana certainly could not have relied on this case in his original § 2255 motion
because the decision was announced on June 23, 2016, long after the § 2255
Motion was denied.
Moreover, the Seventh Circuit has indicated that Mathis
announced a substantive rule and, under controlling precedent, is retroactively
applicable. See Dawkins, 829 F.3d at 551 (7th Cir. 2016); Montana v. Cross, 829
F.3d 775, 783 (7th Cir. 2016); Narvaez v. United States, 674 F.3d 621, 625 (7th
Finally, the alleged increase in Montana’s sentence based on the career
offender enhancement (which relied on the Illinois robbery conviction) could be
deemed a miscarriage of justice. Under the circumstances, the Petition facially
satisfies the Davenport requirements and warrants further review.
The Court notes, however, that “[t]he Supreme Court’s decision in Mathis
dealt with the Armed Career Criminal Act (ACCA), not the federal sentencing
United States v. Hinkle, 832 F.3d 569, 574 (7th Cir. 2016).
Accordingly, it is unclear whether Mathis applies to Montana’s sentence, where
the sentence enhancement was based on the advisory sentencing guidelines and
not the ACCA.
The Supreme Court recently held that the residual clause in
U.S.S.G. § 4B1.2(a) was not subject to a vagueness challenge, distinguishing a
sentence imposed under 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 (Mar. 6, 2017) (distinguishing Johnson, 135 S.Ct. 2551
Given the limited record before the Court and the still-developing
application of Mathis, it is not plainly apparent that relief is unwarranted. See
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts.
Therefore, the Court deems it appropriate to order a response to the Petition.
IT IS HEREBY ORDERED that Respondent Warden T. G. Werlich shall
answer the Petition or otherwise plead within thirty (30) days of the date this
order is entered (on or before September 8, 2017). 1 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
The response date Ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only. See SDIL-EFR 3.
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
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.
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.
Failure to provide such notice may result in dismissal of this action. See FED. R.
CIV. P. 41(b).
IT IS SO ORDERED.
Digitally signed by
Judge David R.
DATED: August 9, 2017.
United States District Judge
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