Wiggins v. Werlich

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 9/6/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD WIGGINS
# 14047-026,
Petitioner,
vs.
T. G. WERLICH,
Respondent.

Case No. 17-cv-697-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Ronald Wiggins is currently incarcerated at the Federal
Correctional Institution located in Greenville, Illinois (“FCI-Greenville”).

He

brings this habeas action pursuant to 28 U.S.C. § 2241 in order to challenge his
enhanced sentence as a career offender based on two prior Illinois drug
convictions. (Doc. 1, p. 2).
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.
The § 2241 Petition survives preliminary review under this standard.

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I.

Background

In 2004, Wiggins was convicted in the United States District Court for the
Central District of Illinois of robbing a credit union in violation of 18 U.S.C.
§ 2113(a).

See United States v. Wiggins, No. 03-CR-20032-JES-1 (C.D. Ill.)

(“criminal case”).

At the time, Wiggins had two prior state drug trafficking

convictions for possession with intent to deliver a controlled substance and for
manufacturing with intent to deliver a controlled substance in Cook County Case
Nos. 95-CR-01364 and 93-CR-535501. (Doc. 1, pp. 2, 7). Consequently, Wiggins
was sentenced as a career offender to 20 years of imprisonment.
Wiggins’ appointed attorney filed a notice of appeal.

Wiggins, App. No. 04-1698 (7th Cir.).

United States v.

Because he was unable to find a non-

frivolous issue for appeal, however, the attorney subsequently sought permission
to withdraw under Anders v. California, 386 U.S. 738 (1967).

The Seventh

Circuit granted the motion and dismissed the appeal on June 30, 2005. United

States v. Wiggins, 138 F. App’x 842 (7th Cir. 2005).
On September 7, 2006, Wiggins filed a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. Wiggins v. United States, No. 06-CV2169 (C.D. Ill. 2006) (“collateral attack”). Wiggins argued unsuccessfully that he
was denied the effective assistance of counsel. Id. The § 2255 motion was denied
on December 3, 2007. Id; Wiggins v. United States, 2007 WL 4277442 (C.D. Ill.
Dec. 3, 2007).

Wiggins filed a notice of appeal, which the Seventh Circuit

construed as an application for a certificate of appealability and denied. Wiggins

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v. United States, App. No. 08-1100 (7th Cir. Apr. 8, 2008).
Wiggins then filed a second § 2255 motion on January 31, 2013, again
arguing that his conviction must be set aside based on the ineffective assistance of
his counsel. Wiggins v. United States, No. 06-CV-2169 (C.D. Ill. 2006) (“second
collateral attack”). The district court dismissed the second § 2255 motion the
following day, after recognizing it as a second or successive motion for which it
lacked jurisdiction to consider. Wiggins v. United States, 2013 WL 411484 (C.D.
Ill. Feb. 1, 2013). The Seventh Circuit denied Wiggins certification to appeal and
informed him that he could only pursue a successive § 2255 motion if he received
prior authorization to do so. Wiggins v. United States, App. No. 13-1366 (7th Cir.
Oct. 8, 2013) (Doc. 15).
Undeterred, Wiggins filed another § 2255 motion on May 5, 2014. Wiggins

v. United States, No. 06-CV-2169 (C.D. Ill. 2006) (“third collateral attack”).
Relying on Alleyne v. United States, 133 S.Ct. 2151 (2013), he argued that his
sentence violated the Sixth Amendment. The district court dismissed the third
collateral attack for lack of jurisdiction two days later. Wiggins v. United States,
2014 WL 1856727 (C.D. Ill. May 7, 2014). The Seventh Circuit denied Wiggins’
subsequent request for a certificate of appealability.

Wiggins v. United States,

App. No. 14-2203 (7th Cir. Nov. 14, 2014). At the same time, the Seventh Circuit
also warned Wiggins that he “risks monetary sanctions and a restriction on future
filings should he continue launching frivolous collateral attacks.”

Alexander v. United States, 121 F.3d 312, 315 (7th Cir. 1997)).

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Id. (citing

On June 14, 2016, Wiggins sought authorization to file a successive § 2255
motion, in order to challenge his sentence as a career offender under the United
States Supreme Court’s decision in Johnson v. United States, -- U.S. --, 135 S.Ct.
2551 (2015). Wiggins v. United States, App. No. 16-2142 (7th Cir.) (Doc. 7). The
Seventh Circuit would not authorize a second or successive § 2255 motion
because it concluded that his sentence is consistent with Johnson. Id.
On September 12, 2016, he nevertheless filed a letter in the district court
that was construed as a § 2255 motion. (Doc. 81, criminal case). The court
forwarded the letter to the Seventh Circuit for consideration. Wiggins v. United

States, App. No. 16-3417 (7th Cir. 2016). On September 20, 2016, the Seventh
Circuit again denied Wiggins authorization to file a successive § 2255 motion.
(Doc. 83, criminal case).

Wiggins attempted to challenge his career offender

designation, this time arguing that his two drug trafficking convictions are not
qualifying “controlled substance offenses” under U.S.S.G. § 4B1.2(b).

The

Seventh Circuit explained that his claim was barred under § 2244(b)(2) because it
was not “newly available.” Id. (citing Brannigan v. United States, 249 F.3d 584,
589 (7th Cir. 2001); Bennett v. United States, 119 F.3d 470, 472 (7th Cir. 1997)).
To the extent he relied on Johnson, the Seventh Circuit concluded that his claim
was also barred because Wiggins was previously denied permission to file a
successive § 2255 motion on the basis of Johnson. (Doc. 83, criminal case).

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II.

The Petition

In the instant § 2241 Petition, Wiggins asserts that his two prior Illinois
drug trafficking convictions no longer trigger an enhanced sentence under the
United States Sentencing Guidelines based on the Supreme Court’s decision in

Mathis v. United States, -- U.S. --, 136 S.Ct. 2243 (2016). (Doc. 1, pp. 7-10)
(citing U.S.S.G. § 4B1.1 and 4B1.2).

Both prior convictions resulted from

violations of 720 ILCS § 570/401, a statute that Wiggins maintains is divisible.
(Doc. 1, p. 7). The terms “manufacture” or “deliver” in the Illinois statute are
allegedly more broadly defined than the generic “controlled substance offenses”
under U.S.S.G. § 4B1.2(b). (Doc. 1, pp. 7-8). Under Mathis, Wiggins argues that
neither conviction can be used to enhance his sentence as a career offender. (Doc.
1, pp. 7-10).
III.

Discussion

Ordinarily, a prisoner may challenge his federal conviction or sentence by
bringing a motion to vacate, set aside, or correct sentence under § 2255 before the
sentencing court. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (citing

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

This remedy typically

supersedes the writ of habeas corpus. Id. However, the number of collateral
attacks that a prisoner may bring is limited, and Wiggins has already filed many.
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

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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 Wiggins to file a
second or successive § 2255 motion on either ground.
A “savings clause” in § 2255(e) 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). To invoke the “savings clause”
and obtain collateral relief under § 2241, three requirements must be met. First,
the petitioner must show that he relies on a new case of statutory interpretation
rather than a constitutional decision. Id. 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.

Id.

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.

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Wiggins 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). In Mathis, the Supreme Court set forth the test that should be applied
when determining whether a state conviction counts as a predicate offense that
can be used to enhance a federal defendant’s sentence under the elements clause
of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

Wiggins, in

essence, argues that his Illinois drug trafficking convictions do not qualify as
“controlled substance offenses” under a similar clause in the United States
Sentencing Guidelines.
The first Davenport requirement is satisfied because Mathis is a “new”
statutory interpretation case. See Dawkins v. United States, 829 F.3d 549, 551
(7th Cir. 2016) (Mathis “is a case of statutory interpretation.”); Jenkins v. United

States, No. 16-3441 (7th Cir. Sept. 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

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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 Wiggins’ sentence resulting from
his career offender status could amount to a miscarriage of justice. The § 2241
Petition facially satisfies the Davenport requirements.
But whether Mathis applies to Wiggins’ sentence, in particular, is not clear.
His 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 distinguished

sentences imposed under the advisory sentencing guidelines from sentences
imposed under the residual clause of the ACCA by recently holding that the
residual clause in U.S.S.G. § 4B1.2(a) is not subject to a vagueness challenge.

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)).

At this point,

however, the impact of Mathis is not yet clear, and the record before this Court is
not fully developed. Because it is not plainly apparent that relief is unwarranted,
the Court shall order a response to the § 2241 Petition. See Rule 4 of the Rules
Governing § 2254 Cases in United States District Courts.

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IV.

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 T. G. Werlich shall answer the
§ 2241 Petition or otherwise plead within thirty (30) days of the date this order is
entered (on or before October 5, 2017). 1 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 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)

1

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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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).

Digitally signed by Judge
David R. Herndon
Date: 2017.09.06 13:15:50
-05'00'

IT IS SO ORDERED.

___________________________________
District Judge
United States District Court

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