Hoskins v. Werlich

Filing 18

ORDER granting 14 Motion to Dismiss. Signed by Magistrate Judge Clifford J. Proud on 11/16/2017. (jmp2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BARON HOSKINS,

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Petitioner,
vs.
T.G. WERLICH,

Respondent.

Civil No. 17-cv-652-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
Petitioner Baron Hoskins (Petitioner) filed a petition for writ of habeas
corpus under 28 U.S.C. § 2241 challenging the enhancement of his sentence as a
Career Offender under U.S.S.G. §§ 4B1.1 and 4B1.2. (Doc. 1). 2 He purports to
rely on Mathis v. United States, 136 S. Ct. 2243 (2016). Id. Now before the
Court is Respondent’s Motion to Dismiss Petitioner’s Petition for Writ of Habeas
Corpus. (Doc. 14). Petitioner responded to the motion at Doc. 17.
Respondent argues the petition must be dismissed because Petitioner
waived his right to file a collateral attack. (Doc. 14).
Relevant Facts and Procedural History
Petitioner pled guilty in the Northern District of Iowa to conspiracy to
distribute more than five grams of cocaine base within 1,000 feet of a protected
location.

United States v. Hoskins, Case No. CR 08-1001-1-LRR (N.D. Iowa);

(Doc. 14, Ex. C). The district court initially sentenced Petitioner to 262 months,
1

The parties consented to final disposition by a magistrate judge, pursuant to 28 U.S.C. § 636(c).
See Doc. 13.
2
The Court uses the document, exhibit and page numbers assigned by the CM/ECF filing system.

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and then subsequently reduced the sentence to 188 months. (See Judgment in
criminal case, Doc. 41; Amended Judgment, Doc. 49).
Petitioner executed a “Waiver of Appeal” in connection with his guilty plea.
(Doc. 33 in criminal case).

The agreement contained a waiver of the right to

appeal or file a collateral attack:
To induce the government into accepting the provisions of this plea
agreement, to avoid a trial, and to have this proceeding finally
concluded, I voluntarily and knowingly waive my rights under this
statute to appeal or contest, directly or collaterally, the sentence.
Further, I waive all rights to contest the conviction or sentence in any
post-conviction proceeding, including actions pursuant to 28 U.S.C.
§§ 2255 or 2241. I consent to sentencing without any right of appeal
or post-conviction proceeding except if the court finds that the United
States has violated this plea agreement or if the sentence is not in
accordance with the plea agreement, is imposed in excess of the
maximum penalty provided by statute, or is unconstitutionally
defective.
Id. Petitioner filed an interlocutory appeal from the sentencing court, contesting
the court’s denial of a reduction in his sentence. (Doc. 54 in criminal case). The
Eighth Circuit Court of Appeals summarily affirmed the judgment. (Doc. 57 in
criminal case).
Analysis
Citing Mathis v. United States, 136 S. Ct. 2243 (2016), Petitioner argues
that his prior state convictions do not qualify as violent offenses or controlled
substance offenses for purposes of the Career Offender enhancement under
U.S.S.G. § 4B1.2.

It is unnecessary to consider the substantive merits of his

argument because the Waiver of Appeal bars this collateral attack.
2

There is no doubt a plea agreement may include a valid waiver of the right
to appeal and to file a collateral attack, and that such waivers are generally
enforceable, with limited exceptions. Solano v. United States, 812 F.3d 573, 577
(7th Cir. 2016). The limited exceptions are where the plea agreement itself was
involuntary, the defendant argues ineffective assistance of counsel with regard to
the negotiation of the plea, the sentencing court relied on a constitutionally
impermissible factor such as race, or the sentence exceeded the statutory
maximum. Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). A waiver
of the right to bring a collateral attack on a conviction or sentence bars a § 2241
petition; the waiver does not make the remedy afforded by § 2255 inadequate or
ineffective so as to open the door to a § 2241 petition. Muse v. Daniels, 815 F.3d
265, 266 (7th Cir. 2016).

Further, a subsequent change in the law does not

render an appeal waiver involuntary. United States v. Vela, 740 F.3d 1150, 1151
(7th Cir. 2014).
The Seventh Circuit has enforced appeal waivers against challenges to
career offender designations. United States v. Smith, 759 F.3d 702 (7th Cir.
2014); United States v. McGraw, 571 F.3d 624 (7th Cir. 2009); United States v.
Standiford, 148 F.3d 864 (7th Cir. 1998).

McGraw is instructive; there, the

defendant argued that the convictions used categorize him as a career offender no
longer constituted crimes of violence after Begay v. United States, 128 S.Ct.
1581 (2008).

The Seventh Circuit enforced the waiver, noting that “We have

consistently rejected arguments that an appeal waiver is invalid because the

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defendant did not anticipate subsequent legal developments.” McGraw, 571 F.3d
at 631.
In response to the motion, Petitioner argues the appeal waiver does not
apply. He contends his sentence is “unconstitutionally defective,” which is one of
the enumerated exceptions in the waiver.
Although Petitioner broadly cites the due process clause of the Fifth
Amendment, he does not actually attack his sentence on constitutional grounds.
“[A]lmost every argument in a criminal case may be restated in general
constitutional form. . . .” United States v. Behrman, 235 F.3d 1049, 1051 (7th
Cir. 2000). Here, Petitioner basis his claim on Mathis, and the Seventh Circuit
has unequivocally stated that Mathis does not announce a rule of constitutional
law. In Dawkins v. United States, 829 F.3d 549 (7th Cir. 2016), a petitioner
attempted to bring a Mathis claim in a successive habeas petition under §
2255(h). In dismissing the petition, the Seventh Circuit explained, “[O]nly new
rules of constitutional law, made retroactive by the Supreme Court, can provide a
basis for authorization [under § 2255(h)]. Mathis did not announce such a rule;
it is a case of statutory interpretation.” Dawkins, 829 F.3d at 551.
Petitioner cites Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011),
asserting his sentence was unconstitutional and amounted to a miscarriage of
justice. In Narvaez, the petitioner was erroneously sentenced as a career offender
in 2003, when the sentencing guidelines were still mandatory. Narvaez, 674 F.3d
at 624-25. In 2005, however, the Supreme Court in United States v. Booker, 543

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U.S. 220 (2005) declared the sentencing guidelines merely advisory.

Because

Petitioner, here, was sentenced in 2008, Narvaez is inapplicable to his claim.
Petitioner’s attempt to shroud his Mathis claim in the Fifth Amendment is
unsuccessful.
In fact, Petitioner cannot assert a constitutional claim in his current
petition, which he brings under § 2241. A prisoner may challenge his sentence
via § 2241 if he satisfies three conditions set forth in In re Davenport, 147 F.3d
605 (7th Cir. 1998): (1) the petitioner relies on a statutory-interpretation case; (2)
the new rule applies retroactively on collateral review and could not have been
invoked in the petitioner’s previous proceedings; and (3) the error amounts to a
miscarriage of justice. Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016);
Davenport, 147 F.3d at 610–11.
Assuming arguendo Petitioner presents a constitutional argument, he would
not be able to surpass even the initial inquiry in Davenport: “First, the prisoner
must show that he relies on a ‘statutory-interpretation case,’ rather than a
‘constitutional case.’” Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013)
(emphasis added). Thus, Petitioner’s claim would inevitably fail under Davenport
even if it survived Respondent’s Motion to Dismiss.
For the foregoing reasons, Petitioner’s motion does not fall within any of the
exceptions to the waiver. He does not otherwise contend the appeal waiver is
invalid and, therefore, Petitioner is barred from maintaining this collateral attack
on his sentence.

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Conclusion
Respondent’s Motion to Dismiss Petitioner’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 14) is GRANTED.
Baron Hoskin’s Petition for a Writ of Habeas Corpus under 28 U.S.C.
§2241 (Doc. 1) is DENIED. This action is DISMISSED WITH PREJUDICE.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
DATE: November 16, 2017
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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Notice
If petitioner wishes to appeal the 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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