Mitchell v. True
ORDER DENYING 1 Petition for Writ of Habeas Corpus under 28 U.S.C. sec. 2241. The Clerk of Court is DIRECTED to enter judgment in favor of respondent. Signed by Judge David R. Herndon on 1/8/2018. (ceh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Civil No. 17-cv-639-DRH-CJP
MEMORANDUM and ORDER
Petitioner Raydale Mitchell 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). See, Memorandum in Support, Doc. 5.
Respondent filed a response at Doc. 11, and petitioner filed a reply at Doc.
Relevant Facts and Procedural History
Pursuant to a written plea agreement, Mitchell pleaded guilty to one count
of distribution of heroin in the Western District of Wisconsin. The agreement did
not include a waiver of appeal rights.
On June 1, 2012, he was sentenced to 168
United States v. Mitchell, Case No. 11-cr-00083-jdp,
Docs. 25. & 51.
Mitchell filed a direct appeal. In its non-precedential order affirming the
conviction and sentence, the Seventh Circuit stated:
Two prior felony convictions involving a crime of violence made
Mitchell a career offender, see U.S.S.G. §§ 4B1.1(a), (b)(3), which gave him
an offense level of 29 after a 3–level reduction for acceptance of
responsibility, see id. § 3E1.1, and yielded a guidelines sentence of 151 to
188 months. The probation officer who prepared the presentence report
determined that, without the career-offender analysis, Mitchell would be
subject to an identical guidelines range based on the amount of heroin
attributable to him, see id. §§ 2D1.1(a)(5), (c)(5), and a 2–level increase
because Mitchell had acted as an organizer by paying his brother to deliver
some of the heroin for him, see id. § 3B1.1(c).
United States v. Mitchell, 525 F. App'x 479, 480 (7th Cir. 2013).
Mitchell also filed a motion under 28 U.S.C. § 2255.
ineffectiveness of counsel and that his classification as a career offender was no
longer valid after Johnson v. United States, 135 S. Ct. 2551 (2015). The motion
was denied in October 2016. Case No. 14-cr-00473-jdp, Doc. 12.
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
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
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).
Mitchell’s argument has shifted over time. Citing Mathis v. United States,
136 S. Ct. 2243 (2016), he originally argued that his prior convictions for Illinois
armed robbery and Wisconsin aggravated battery no longer qualify as crimes of
violence for purposes of the career offender enhancement. See, Memorandum in
Support, Doc. 5. In his reply, Doc. 16, he advanced a different argument, that his
armed robbery conviction was too old to have been used as a predicate conviction
for the career offender enhancement. This new argument does not rely on Mathis
The petition must be denied as to both arguments.
Mitchell cannot bring a Mathis claim in a § 2241 petition. There are some
errors 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 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.”)
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 2012, 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.
Petitioner’s second argument about the age of the armed robbery conviction
cannot be brought in a § 2241 petition because it does not arise out of a new rule
of law at all.
Petitioner acknowledges that his attorney objected to the
presentence report on this basis, and the probation office filed an addendum to
the report, “noting that the Illinois Department of Corrections had confirmed that
the conviction was not discharged until 1995 (thus falling within 15 years of
Mitchell’s 2009 drug deals.)” The objection was then withdrawn. Mitchell now
claims that new information consisting of “verbal confirmation over the phone”
indicates that his armed robbery conviction was actually “early released” before
1995. Doc. 16, pp. 2-3. Clearly, this argument does not arise out of a new rule of
law, much less a new rule of statutory construction that applies retroactively on
collateral review, and therefore does not meet the first of the Davenport
In addition, any attack on the career offender enhancement is futile because
petitioner faced the same Guidelines range whether or not he was considered to
be a career offender. United States v. Mitchell, 525 F. App'x 479, 480 (7th Cir.
For the foregoing reasons, Raydale Mitchell’s Petition for Writ of Habeas
Corpus under 28 U.S.C. §2241 (Doc. 1) is DENIED.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
United States District Judge
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.
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
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