Holmes v. True

Filing 18

ORDER DISMISSING CASE: The Court DENIES and DISMISSES with prejudice petitioner's 1 Petition for Writ of Habeas Corpus. The Clerk is directed to enter judgment accordingly. Signed by Judge David R. Herndon on 1/22/2018. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLEVIS HOLMES,
Petitioner,
vs.

Civil No. 17-cv-628-DRH-CJP

B. TRUE,
Respondent.
MEMORANDUM and ORDER
Petitioner Clevis Holmes 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).
Respondent filed a response at Doc. 11 and a supplemental response at
Doc. 13. Petitioner filed replies at Docs. 14 and 17.

Relevant Facts and Procedural History
Holmes pleaded guilty to one count of distribution of cocaine, one count of
distribution of heroin, and one count of aiding and abetting the distribution of
cocaine base (“crack”) in this district. United States v. Holmes, Case No. 14-cr30155-DRH (S.D. Ill.). There was not a written plea agreement. On April 17,
2015, he was sentenced to 188 months imprisonment on each count, to run
concurrently.
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At sentencing, the court determined that petitioner qualified as a career
offender based on two prior convictions for drug offenses under Illinois law. He
had a 2002 conviction for unlawful delivery of a controlled substance while
located within 1000 feet of a housing project in violation of 720 ILCS 570/407,
and a 2006 conviction for unlawful delivery of a controlled substance in violation
of 720 ILCS 570/401. His advisory sentencing range was 188 to 235 months.
Case No. 14-30155-DRH, Transcript of Sentencing Hearing, Doc. 46, p. 7.
Petitioner filed a direct appeal. His attorney filed an Anders brief. The
Seventh Circuit affirmed. United States v. Holmes, 623 F. App'x 813 (7th Cir.
2015)
Petitioner did not file a motion under 28 U.S.C. § 2255.

Legal Standards Applicable to Section 2241
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may
not be used to raise claims of legal error in conviction or sentencing, but are
limited to challenges regarding the execution of a sentence. See, Valona v. United

States, 138 F.3d 693, 694 (7th Cir.1998).
A prisoner who has been convicted in federal court is generally limited to
challenging his conviction and sentence by bringing a motion pursuant to 28
U.S.C. § 2255 in the court which sentenced him.

A motion under § 2255 is

ordinarily the “exclusive means for a federal prisoner to attack his conviction.”

Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is generally

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limited to bringing only one motion under § 2255.

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).
However, it is possible, under very limited circumstances, for a prisoner to
challenge his federal conviction or sentence under § 2241. 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.” The Seventh Circuit construed the savings clause in In

re Davenport, 147 F.3d 605, 611 (7th Cir. 1998):

“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.”
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

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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).

Analysis
Citing Mathis v. United States, 136 S. Ct. 2243 (2016), petitioner argues
that his prior convictions for drug offenses under Illinois law no longer qualify as
controlled substance offenses for purposes of the career offender enhancement.
The merits of petitioner’s argument are questionable, at best. The Seventh
Circuit has held that a conviction for violating 720 ILCS 570/401 qualifies as a
controlled substance offense for purposes of the career offender enhancement:
The definition that underlies the offense established by 720 ILCS 570/401
tells us that “deliver” and “delivery” mean an “actual, constructive or
attempted transfer”. 720 ILCS 570/102(h). Any conduct meeting the state's
definition of “delivery” comes within § 4B1.2(b) because “transfer” is just
another word for distribute or dispense.

United States v. Redden, 875 F.3d 374, 375 (7th Cir. 2017).

Redden is binding

precedent for this court. Petitioner suggests no meaningful way to distinguish

Redden.
However, the court need not decide the merits of petitioner’s argument
because he cannot bring a Mathis claim in a § 2241 petition.
There are some claims that can be raised on direct appeal but not in a
collateral attack such as a § 2255 motion or a § 2241 petition. A claim that a

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defendant was erroneously treated as a career offender under the advisory
Sentencing Guidelines is one such claim. Hawkins v. United States, 706 F.3d 820
(7th Cir. 2013), supplemented on denial of rehearing, 724 F.3d 915 (7th Cir.
2013).

See also, United States v. Coleman, 763 F.3d 706, 708–09 (7th Cir.

2014)(“[W]e held in Hawkins that the error in calculating the Guidelines range did
not constitute a miscarriage of justice for § 2255 purposes given the advisory
nature of the Guidelines and the district court's determination that the sentence
was appropriate and that it did not exceed the statutory maximum.”)
Petitioner suggests that Hawkins is undermined by Molina-Martinez v.

United States, 136 S. Ct. 1338 (2016). Molina-Martinez concerned the proper
standard for review on direct appeal of unpreserved error in calculating a
Guidelines range. Molina-Martinez, 136 S. Ct. at 1349. That case does not in any
way invalidate the holding of Hawkins.
The Seventh Circuit recently reiterated that the Sentencing Guidelines have
been advisory and not mandatory ever since the Supreme Court decided United

States v. Booker, 125 S.Ct. 738 (2005). Perry v. United States, 877 F.3d 751 (7th
Cir. 2017). Petitioner was sentenced in 2015, long after Booker was decided. He
received a sentence that was within the statutory range. Therefore, he cannot
demonstrate a miscarriage of justice so as to permit a § 2241 petition.

Conclusion
For the foregoing reasons, Clevis Holmes’ Petition for Writ of Habeas

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Corpus under 28 U.S.C. §2241 (Doc. 1) is DENIED.
The Clerk of Court shall enter judgment in favor of respondent.

Judge Herndon
2018.01.22
16:06:43 -06'00'

IT IS SO ORDERED.

United States District Judge

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Notice
If petitioner wishes to appeal the dismissal or 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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