Sullivan v. USA

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 8/21/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MATTHEW SULLIVAN,
No. 15791-026,
Petitioner,

Case No. 17−cv–640-DRH

vs.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Pro se Petitioner Matthew Sullivan, currently incarcerated in the United
States Penitentiary at Marion, Illinois (USP-Marion), brings this habeas corpus
action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of his
confinement. Relying on the recent case of Mathis v. United States, ––– U.S. ––––,
136 S. Ct. 2243 (2016) and other recent decisions, he argues that his prior
Illinois state convictions should not have been used to impose an enhanced
sentence under the career offender sentencing guidelines.
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

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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
on the merits of Petitioner's claims, the Court concludes that the Petition survives
preliminary review under Rule 4 and Rule 1(b).
BACKGROUND
On March 6, 2014, Petitioner entered into a plea agreement in which he
pled guilty to 21 U.S.C. 846, 841(a)(1), and 841(b)(1)(A) for Conspiracy to
Manufacture, Distribute, and Possess with the Intent to Distribute more than 280
grams of cocaine base. See Case No. 4:12-cr-10115-JES-JEH-1 (“Criminal Case”).
On July 11, 2014, Petitioner was sentenced to 312 months’ imprisonment. Id. at
Doc. 171.
In the Criminal Case, Petitioner was sentenced as a career offender
pursuant to the United States Sentencing Guidelines (USSG) at § 4B1.1. (Doc. 1,
p. 5). The sentencing enhancement was based on the fact that Petitioner had at
least two prior felony convictions of either a crime of violence or a controlled
substance offense, which Petitioner identifies as Unlawful Delivery of a Controlled
Substance (720 ILCS 570/401(c)), Possession of a Controlled Substance with
Intent to Deliver (720 ILCS 570/401(b)), and Aggravated Fleeing and Alluding a
Peace Officer (Section 11-204.1 of the Illinois Vehicle Code). (Doc. 1, pp. 3, 11,
25, 38).

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Petitioner did not appeal his sentence. On July 8, 2015, Petitioner filed a
motion under 28 U.S.C. § 2255 challenging his sentence in light of Freeman v.
United States, 131 S. Ct. 2685 (2011).

See Case No. 1:15-cv-01280-JES.

Petitioner’s § 2255 Petition was dismissed. Id. at Doc. 10.
Discussion
A prisoner may employ § 2241, as opposed to § 2255, to challenge his
federal conviction or sentence under very limited circumstances. Specifically, 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.” 28 U.S.C. § 2255(e).
Here, Petitioner argues that, in light of Mathis and related authority, his
prior Illinois convictions do not qualify as predicate offenses for a career-criminal
enhancement.

(Doc. 1, pp. 11-39).

Petitioner asks the Court to remove his

“‘career offender’ status” so that he may be resentenced without the career
offender enhancement. (Doc. 1, p. 39).
As the undersigned has explained in a number of prior decisions, this type
of challenge facially satisfies the conditions to be considered in a § 2241
proceeding under the savings clause of § 2255(e). See e.g., Hoskins v. Werlich,
No. 17-cv-652-DRH (S.D. Ill. July 28, 2017); Warren v. Werlich, No. 17-cv-84DRH (S.D. Ill. Mar. 27, 2017); Davis v. USA, 17-cv-379-DRH (S.D. Ill. June 14,
2017); Wadlington v. Werlich, No. 17-cv-4499-DRH (S.D. Ill. July 17, 2017).
However, as the Court has previously noted, Mathis involved the Armed Career

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Criminal Act and not the federal sentencing guidelines. United States v. Hinkle,
832 F.3d 569, 574 (5th Cir. 2016). Thus, the Mathis decision may or may not be
applicable to Petitioner's sentence, where the sentencing enhancement was
determined based on the advisory sentencing guidelines and not the ACCA
statute.1
Nonetheless, given the limited record before the Court 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.
Respondent
Petitioner has named the United States of America as the respondent in this
action. However, in a habeas corpus proceeding, the proper respondent is the
prisoner's custodian; in other words, the warden of the prison where the inmate is
confined. See 28 U.S.C. § 2242 (an application for a writ of habeas corpus shall
name the person who has custody over the applicant); Rumsfeld v. Padilla, 542
U.S. 426, 442, 447, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004); Kholyavskiy v.
Achim, 443 F.3d 946, 948–49 (7th Cir. 2006); Hogan v. Hanks, 97 F.3d 189, 190
(7th Cir.1996).

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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, ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017) (distinguishing Johnson v.
United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)).

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Accordingly, the CLERK is DIRECTED to terminate the United States of
America as the respondent in this action, and add the Warden, United States
Penitentiary–Marion as the respondent. See FED. R. CIV. P. 21; FED. R. CIV. P.
17(d).

In any future documents filed in this case, Petitioner shall identify the

Warden by his or her proper name.
Disposition
IT IS HEREBY ORDERED that Respondent Warden, United States
Penitentiary–Marion shall answer or otherwise plead within thirty days of the date
this order is entered (on or before September 20, 2017).2 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.

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.

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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
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).
IT IS SO ORDERED.
Dated: August 21, 2017

Judge Herndon
2017.08.21 14:25:20 -05'00'

United States District Judge

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