Pierce v. True

Filing 13

ORDER granting 9 Motion to Dismiss for Failure to State a Claim. This action is dismissed with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge David R. Herndon on 1/8/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD AARON PIERCE,

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Petitioner,
vs.
WARDEN B. TRUE,
Respondent.

Civil No. 17-cv-696-DRH-CJP

MEMORANDUM and ORDER
Petitioner Ronald Aaron Pierce filed a petition for writ of habeas corpus
under 28 U.S.C. §2241 (Doc. 1) challenging the enhancement of his sentence
under U.S.S.G. § 2K2.1(a)(4). He purports to rely on Mathis v. United States, 136
S. Ct. 2243 (2016). Now before the Court is Respondent’s Motion to Dismiss,
Doc. 9.
Respondent argues that the petition must be dismissed because an
incorrect application of an advisory Sentencing Guideline is not a miscarriage of
justice that can be remedied in a collateral proceeding.
Petitioner was granted an extension of time in which to respond to the
motion. His response was due by December 18, 2017. See, Doc. 12. Petitioner
has not filed a response.

The court deems the failure to respond to be an

admission of the merits of the motion pursuant to SDIL – LR 7.1(c).
Relevant Facts and Procedural History
Pursuant to a written plea agreement, Pierce pleaded guilty to one count of
being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) in the Eastern
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District of Tennessee. United States v. Pierce, Case No. 11-cr-00093-JRG. On
September 17, 2012, he was sentenced to 108 months imprisonment.
The plea agreement contained a waiver of the right to file a collateral attack:
In addition, the defendant knowingly and voluntarily waives the right to file
any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally
attack the defendant’s conviction(s) and/or resulting sentence. The parties
agree that the defendant retains the right to raise, by way of collateral
review under § 2255, claims of ineffective assistance of counsel or
prosecutorial misconduct not known to the defendant by the time of the
entry of judgment.
Case No. 11-cr-00093-JRG, Doc. 11, pp. 6-7.
Through counsel, petitioner filed a motion under 28 U.S.C. § 2255. Citing

Johnson v. United States, 135 S. Ct. 2551 (2015), he argued that his prior
conviction for Tennessee aggravated burglary should not have been used to
enhance his sentence under U.S.S.G. § 2K2.1(a)(4). Case No. 11-cr-00093-JRG,
Doc. 23. He dismissed his motion without prejudice after the Supreme Court
decided in Beckles v. United States, 137 S. Ct. 886 (2017), that Johnson does not
extend to Sentencing Guidelines cases. Case No. 11-cr-00093-JRG, Doc. 29.
Analysis
Ostensibly relying on Mathis v. United States, 136 S. Ct. 2243 (2016),
Pierce argues that his prior conviction for aggravated burglary under Tennessee
law no longer qualifies as a crime of violence within the meaning of § 2K2.1(a)(4). 1
Petitioner cites United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), in

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“Crime of violence” has the same meaning under U.S.S.G. § 2K2.1 as it does under the career
offender enhancement, § 4B1.1. See, Application Note 1 of the Commentary to § 2K2.1. Until it
was amended effective August 1, 2016, § 4B.1.2 specified that burglary of a dwelling was a crime
of violence for purposes of the career offender enhancement.

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which the Sixth Circuit held that Tennessee aggravated burglary is broader than
generic burglary and therefore does not qualify as a violent felony for purposes of
the Armed Career Criminal Act, 18 U.S.C. § 924(e).

The Seventh Circuit has

ruled the opposite regarding the Illinois residential burglary statute, which is
similar to the Tennessee statute in relevant respects, and has expressly rejected
the reasoning of the Stitt majority. Smith v. United States, ___ F.3d __ , 2017 WL
6350072, at *3 (7th Cir. Dec. 13, 2017). Further, petitioner assumes that Mathis
would apply to U.S.S.G. § 2K2.1 and that Stitt would apply to an enhancement
under the Guidelines as well as to an enhancement under the Armed Career
Criminal Act.

Therefore, the merits of petitioner’s argument are not at all clear.

However, it is not necessary to wade into the merits because it is clear that Pierce
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.”)

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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, ___ F.3d ___,
2017 WL 6379634 (7th Cir. Dec. 14, 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.
Conclusion
For the foregoing reasons, Respondent’s Motion to Dismiss (Doc. 9) is
GRANTED. This action is DISMISSED WITH PREJUDICE. The Clerk of Court
shall enter judgment in favor of respondent.
IT IS SO ORDERED.

Judge Herndon
2018.01.08
16:45:02 -06'00'
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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