McCoy v. True

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 8/28/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN L. McCOY
# 07710-025,
Petitioner,
vs.
WILLIAM TRUE,
Respondent.

Case No. 17-cv-657-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Steven McCoy is currently incarcerated at the United States
Penitentiary in Marion, Illinois (“USP-Marion”).

He filed a Petition for Writ of

Habeas Corpus Under 28 U.S.C. § 2241 in order to challenge his enhanced
sentence as a career offender based on two convictions for unlawful delivery of a
controlled substance and one conviction for robbery in Illinois. (Doc. 1).
This matter is now before the Court for review of the § 2241 Petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District
Courts, which 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 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.

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I.

Background

In June 2007, McCoy pled guilty pursuant to a written plea agreement to
possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841.

See United States v. McCoy, No. 07-cr-30012-MJR (S.D. Ill.) (“criminal case”)
(Doc. 37). The United States District Court for the Southern District of Illinois
sentenced him as a career offender to a term of 200 months to run consecutively
to two sentences he received in state court 1 and was already serving. (Doc. 40,
criminal case). Judgment was entered on October 5, 2007. (Doc. 41, criminal
case). McCoy did not file a direct appeal. (Doc. 1, p. 2, instant case).
On June 13, 2016, McCoy filed a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. McCoy v. United States, No. 16-cv-00631-MJR
(S.D. Ill. 2016) (“collateral attack”). McCoy challenged his sentence based on the
United States Supreme Court’s decision in Johnson v. United States, -- U.S. --,
135 S.Ct. 2551 (2015), which found the residual clause in 18 U.S.C.
§ 924(e)(2)(B)(ii) of the Armed Career Criminal Act (“ACCA”) unconstitutionally
vague, and Welch v. United States, -- U.S. --, 136 S.Ct. 1257 (2016), which held
that Johnson was retroactively applicable to cases on collateral review. The Court
denied the § 2255 motion on April 4, 2017, after determining that a waiver
contained in McCoy’s written plea agreement prevented him from pursuing the
collateral attack. (Doc. 10, pp. 5-6, collateral attack). The Court went on to find,
in the alternative, that Johnson had no effect on McCoy’s status as a career
offender. (Doc. 10, pp. 6-10, collateral attack).
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St. Clair County Case Nos. 03-CF-1415 and 04-CF-1179
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II.

The Petition

In the instant § 2241 Petition, McCoy challenges his sentence as a career
offender in light of Mathis v. United States, -- U.S. --, 136 S.Ct. 2243 (2016).
(Docs. 1, 1-1). McCoy argues that Mathis invalidates two or more of the prior
state convictions used to enhance his sentence as a career offender, including his
two Illinois convictions for unlawful delivery of a controlled substance and/or his
Illinois conviction for robbery. (Doc. 1-1, p. 4). McCoy claims that he will suffer a
miscarriage of justice if he is required to serve the sentence that was imposed
against him as a career offender. Id. He asserts that his written plea agreement
authorizes the instant challenge to his sentence, and he asks this Court to
resentence him without the career offender status. (Doc. 1-1, p. 9).
III.

Discussion

Sections 2241 and 2255 provide federal prisoners with “distinct forms of
collateral relief.” Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (citations
omitted).

Section 2241 applies to “challenges to the fact or duration of

confinement,” and § 2255 applies to “challenges to the validity of convictions and
sentences.” Id. McCoy is challenging his sentence as a career offender. (Doc. 1).
Ordinarily, a federally convicted person may challenge his conviction and
sentence by bringing a motion to vacate, set aside, or correct sentence under
§ 2255 before the sentencing court, and this remedy normally supersedes the writ
of habeas corpus. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (citing

Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). However, the number of

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collateral attacks that a prisoner may bring is limited. McCoy has already filed
one § 2255 motion.

McCoy v. United States, No. 16-cv-00631-MJR (S.D. Ill.

2016).
A second or successive § 2255 motion is not authorized, 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). The Court of Appeals has not authorized McCoy to file a
second or successive § 2255 motion on either ground.
Section 2255 contains a “savings clause,” which allows a federal prisoner to
file a § 2241 petition, if the remedy under § 2255 is “inadequate or ineffective to
test the legality of his detention.” 28 U.S.C. § 2255(e); United States v. Prevatte,
300 F.3d 792, 798-99 (7th Cir. 2002).

In considering what it means to be

“inadequate or ineffective,” the Seventh Circuit has held that “[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.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). In
order to invoke the “savings clause” under § 2255(e) and obtain collateral relief
under § 2241, three requirements must be met. First, the petitioner must show

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that he relies on a new case of statutory interpretation rather than a constitutional
decision. Second, he must show that he relies on a decision that he could not
have invoked in his first § 2255 motion, and the case must apply retroactively.
Third, he must demonstrate that there was a fundamental defect in his conviction
or sentence that is grave enough to be deemed a miscarriage of justice.

Id.;

Brown v. Caraway, 719 F.3d at 586; Brown v. Rios, 696 F.3d at 640; Hill, 695
F.3d at 645.
In his § 2241 Petition, McCoy challenges his enhanced sentence as a career
offender based on the Supreme Court’s decision in Mathis v. United States, -- U.S.
--, 136 S.Ct. 2243 (2016). More specifically, McCoy argues that his Illinois drug
convictions should not have been counted as a “controlled substance offense,” and
his Illinois robbery conviction should not have been counted as a “crime of
violence” under the United States Sentencing Guidelines.

See U.S.S.G.

§ 4B1.1(a).

Mathis addresses the elements clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). The Supreme Court in Mathis set forth the test that
should be applied when determining whether a state conviction falls within the
clause. McCoy argues that this test also renders his sentence as a career offender
under the Guidelines invalid. (Docs. 1, 1-1).
The first Davenport requirement is satisfied because Mathis is a “new”
statutory interpretation case. See Dawkins, 829 F.3d at 551 (Mathis “is a case of
statutory interpretation.”); Jenkins v. United States, No. 16-3441 (7th Cir. Sept.

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20, 2016) (“Mathis is not amenable to analysis under § 2244(b) because it
announced a substantive rule, not a constitutional one.”). The second Davenport
requirement is also satisfied for screening purposes. Mathis is a substantive rule,
and controlling precedent indicates that substantive Supreme Court rules are
applied retroactively. Id.; Narvaez v. United States, 674 F.3d 621, 625 (7th Cir.
2011); Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016). See also Dawkins,
829 F.3d at 551 (claims based on Mathis “must be brought, if at all, in a petition
under 28 U.S.C. § 2241”). But see Street v. Williams, No. 17-cv-364-bbc, 2017
WL 3588651 (W.D. Wis. dismissed August 18, 2017) (dismissing § 2241 petition
brought pursuant to Mathis for failure to satisfy second Davenport requirement);

Neff v. Williams, No. 16-cv-749-bbc, 2017 WL 3575255 (W.D. Wis. dismissed
August 17, 2017) (same); Van Cannon v. United States, No. 16-cv-433-bbc and
08-c5-185-bbc (W.D. Wis. dismissed July 10, 2017) (same). Finally, the alleged
increase in McCoy’s sentence resulting from his status as a career offender could
amount to a miscarriage of justice.
The § 2241 Petition facially satisfies the Davenport requirements.

A

response shall therefore be ordered. With that said, whether Mathis applies to
McCoy’s sentence is not clear because the sentence enhancement was based on
the advisory sentencing guidelines and not the ACCA.

See Mathis v. United

States, -- U.S. --, 136 S.Ct. 2243 (2016). The Supreme Court’s decision in Mathis
dealt with the ACCA. United States v. Hinkle, 832 F.3d 569, 574 (7th Cir. 2016).
The Supreme Court has held that the residual clause in U.S.S.G. § 4B1.2(a) was

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not subject to a vagueness challenge, distinguishing sentences imposed under the
advisory sentencing guidelines from sentences imposed under the residual clause
of the ACCA. Beckles v. United States, -- U.S. --, 137 S.Ct. 886 (March 6, 2017)
(distinguishing Johnson v. United States, -- U.S. --, 135 S.Ct. 2551 (2015)). But
because the impact of Mathis is not yet clear and the record before this Court is
not fully developed, it is not plainly apparent that relief is unwarranted. See Rule
4 of the Rules Governing § 2254 Cases in United States District Courts.
IV.

Pending Motion

The Motion for Leave to Proceed in forma pauperis (Doc. 2) is GRANTED.
V.

Disposition

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Under 28 U.S.C. § 2241 survives preliminary review under Rule 4 and Rule 1(b)
of the Rules Governing Section 2254 Cases in United States District Courts.
IT IS ORDERED that Respondent Warden William True shall answer the
Petition or otherwise plead within thirty (30) days of the date this order is entered
(on or before September 27, 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.

2

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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IT IS 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 and for disposition.
IT IS 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.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
Respondent) 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 28, 2017

Digitally signed by
Judge David R. Herndon
Date: 2017.08.28
14:29:15 -05'00'
United States District Court Judge

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