Pierce v. True

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 8/25/2017. (tjk)

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

No.3:17-cv-00696-DRH

WARDEN B. TRUE,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in United States Penitentiary Marion,
brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the
application of a higher base offense level under United States Sentencing
Guidelines § 2K2.1.
Petitioner was sentenced to 108 months’ imprisonment on September 17,
2012 after pleading guilty to 1 count unlawful transport of firearms in violation of
18 U.S.C. § 922(g)(1). (Doc. 1, p. 1); United States v. Pierce, 11-cr-0093-JRG-1
(E.D. Ten). Previously, Petitioner filed a Motion pursuant to 28 U.S.C. § 2255 in
light of Johnson v. United States, 135 S.Ct. 2551 (2015); the Motion was denied
on May 22, 2017 after Beckles v. United States, 137 S.Ct. 886 (2017), which
found that Johnson did not apply to sentences enhanced pursuant to the

sentencing guidelines. 1 (Doc. 1, p. 2). Petitioner now argues that he received an
improper sentence enhancement pursuant to Mathis v. United States, 136 S.Ct.
2243 (2016). (Doc. 1, p. 7).
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
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.
The Petition
Because Petitioner had a prior conviction for aggravated burglary, his
applicable Sentencing Guideline range was 100 to 120 months. (Doc. 1, p. 7).
Petitioner received a middle-range sentence of 108 months. Id. Petitioner’s base
offense level was calculated with reference to USSG § 2K2.1, which increases the
base offense level from 14 to 20 if the offender has a prior conviction for a “crime
of violence” or “controlled substance offense.” Pierce, 11-cr-0093-JRG, Doc. 22,
p. 1, n. 1. Petitioner argues that his underlying crime of violence was adjudged to
be a Tennessee conviction for aggravated burglary, and that if the Court applies
the Mathis approach, the aggravated burglary charge will no longer meet the

The Seventh Circuit has suggested in a footnote that Beckles v. United States, 137 S.Ct. 886
(2017) does not moot claims brought pursuant to Mathis v. United States, 136 S.Ct. 2243 (2016).
United States v. Lynn, 851 F.3d 786, 795 n. 17 (7th Cir. 2017) (“Moreover, in Beckles, the Court
does not, in any way, suggest that the categorical approach and modified categorical approach
[discussed in Mathis], which it employs when analyzing the ACCA, does not apply with equal force
to the language of § 4B1.2.”)
1

criteria for a crime of violence. (Doc. 1, p. 7). Petitioner alleges that without the
enhancement, the relevant guideline range would have been 63-78 months. Id.
Petitioner requests resentencing. (Doc. 1, p. 11).
Discussion
Ordinarily, a prisoner may challenge his federal conviction or sentence only
by means of a § 2255 motion brought before the sentencing court, and this
remedy typically 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)). A writ of habeas corpus under § 2255 requires the petitioner to file his
challenge in the district that imposed the criminal sentence on him.
U.S.C. § 2255(a).

See 28

In this case, Petitioner is clearly attacking his sentence.

However, he has already filed a motion pursuant to § 2255, and that remedy is no
longer available to him without leave of the appellate court.
The “savings clause” under § 2255(e) allows a federal prisoner to file a
petition under § 2241, if the remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e).

In

considering what it means to be “inadequate or ineffective,” the Seventh Circuit
has held that a federal prisoner should be permitted to seek relief under § 2241
“only if he had no reasonable opportunity to obtain earlier judicial correction of a
fundamental defect in his conviction or sentence because the law changed after
his first 2255 motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). A
federal prisoner must meet 3 criteria in order to invoke the Savings Clause and

obtain collateral relief pursuant to § 2241. First, a prisoner “must show that he
relies on a [new] statutory-interpretation case rather than a constitutional case”;
second, he “must show that he relies on a retroactive decision that he could not
have invoked in his first § 2255 motion”; and third, “[the] sentence enhancement
[must] have been a grave enough error to be deemed a miscarriage of justice
corrigible therefore in a habeas corpus proceeding.” Brown v. Caraway, 719 F.3d
583, 586 (7th Cir. 2013) (citations omitted) (internal quotation marks omitted).
In his attempt to trigger application of the savings clause, Petitioner relies
on Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016). Mathis addresses the
“enumerated clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e); specifically, it addresses what test a court should apply when determining
whether a state conviction falls within the enumerated crimes clause.
Petitioner has met the first two requirements to bring a § 2241 case.

Mathis is a case of statutory interpretation. Dawkins v. United States, 829 F.3d
549, 551 (7th Cir. 2016) (because Mathis “is a case of statutory interpretation,”
claims based on Mathis “must be brought, if at all, in a petition under 28 U.S.C. §
2241.”); Holt v. United States, 843 F.3d 720, 722 (7th Cir. 2016) (Mathis is not a
constitutional case and does not justify second or successive collateral attacks
pursuant to § 2255).
The Petition also meets the second requirement. The Seventh Circuit has
indicated that Mathis is a substantive rule. Dawkins, 829 F.3d at 551 (7th Cir.
2016). Controlling precedent indicates that substantive Supreme Court rules are

applied retroactively. See Narvaez v. United States, 674 F.3d 621, 625 (7th Cir.
2011); Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016).
Petitioner has also plausibly stated that his sentence enhancement may be a
miscarriage of justice.

In Mathis, the Supreme Court discussed the correct

approach to applying the enumerated clause in the ACCA. See 136 S.Ct. 2243
(U.S. 2016). A prior crime qualifies as a predicate offense only if its elements are
the same as, or narrower than, those of the generic offenses listed in the statute.

Id. at 2247. When a statute is indivisible, a court can determine whether the
crime counts as an ACCA predicate by lining up the crime’s elements alongside
those of the generic offense to see if the elements match. Id. at 2248. In the case
of a divisible statute, where the statute lists elements in the alternative, a court
employs a “modified categorical approach” by which the court may examine a
limited class of documents to determine what crime, with what elements, the
defendant was convicted of. Id. at 2249. Mathis stands for the proposition that
when a statute enumerates various facts that meet an element of the crime, a
court must still apply the categorical approach, without reference to the facts of
the specific case. Id. at 2251. That is, if the statute is indivisible, but specifies
that certain alternative facts may satisfy an element, a court cannot look to the
facts of the case to determine whether the conduct involved satisfied the generic
version of the crime if the state statute involved is broader than the generic
version. Id.

The Sentencing Guidelines, like the ACCA, also refer to specific crimes as
grounds for sentencing enhancements. Some of the language of the Sentencing
Guidelines tracks the ACCA quite closely. Petitioner has alleged that Mathis is
directly applicable because, like the petitioner in that case, Petitioner has been
convicted of burglary pursuant to a state law that is broader than the generic
offense of burglary, and his sentence has been enhanced on those grounds. Since

Mathis was decided, the Seventh Circuit has also decided United States v.
Edwards, 836 F.3d 831 (7th Cir. 2016), which specifically found that the district
court used an incorrect approach in enhancing sentences pursuant to § 922(g)(1)
based on a prior Wisconsin burglary convictions. Although that case addressed
Wisconsin law, not Tennessee law, it shows that Petitioner is raising a valid
argument. The Court orders Respondent True to file a response so that the Court
may have the advantage of further briefing in deciding this issue.
IT IS HEREBY ORDERED that Respondent shall answer the petition or
otherwise plead within thirty days of the date this order is entered.

This

preliminary order to respond does not, of course, preclude the State from making
whatever waiver, exhaustion, or timeliness argument 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 Clifford J. 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
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 days after a transfer or other change in address occurs.
IT IS SO ORDERED.
Signed this 24th day of August, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.08.24
17:05:24 -05'00'
UNITED STATES DISTRICT JUDGE