Brown v. Warden

Filing 3

MEMORANDUM AND ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 8/16/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARNELL BROWN,
Petitioner,
vs.

Case No. 17-cv-0729-DRH

WARDEN, FCI GREENVILLE,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in Greenville Federal Correctional
Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge his enhanced sentence as a career offender pursuant to USSG § 4B1.1.
(Doc.1, p. 3); United States v. Brown, No. 3:14-cr-30082-DRH (S.D. Ill.)
(“criminal case”). The Petition was filed on July 12, 2017. (Doc. 1).
Petitioner was sentenced to 151 months’ imprisonment on November 14,
2014 after a guilty plea.

(Criminal Case, Doc. 31).

Petitioner filed a Motion

pursuant to 28 U.S.C. § 2255 seeking collateral review of his sentence on
November 6, 2015. Brown v. United States, 15-cv-1232-DRH (“2255 Petition”).
Petitioner’s § 2255 Motion was based on Johnson v. United States, 135 S.Ct.
2551 (2015); his original pro-se Petition also referenced Begay v. United States,
553 U.S. 137 (2008). (2255 Petition, Doc. 1, Doc, 14).
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
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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
Petitioner argues that one of the crimes which was used to enhance his
sentence as a career offender—aggravated fleeing or attempting to elude a police
officer—is no longer considered a crime of violence after Begay v. United States,
553 U.S. 137 (2008).

(Doc. 1, p. 2).

He also argues that he could not have

presented this argument in his first petition because of “facts that occurred prior
to and after the imposition of his sentence.” (Doc. 1, p. 3). He also alleges that
there was a change in the law after his § 2255 motion, and that he could not have
presented his Begay argument in that motion. Id. Petitioner states that he has
not yet had a full and fair hearing on this issue. Id. Finally, Petitioner argues that
he has received a punishment that the law cannot impose and that the imposition
of such a sentence has resulted in the miscarriage of justice. Id.
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.

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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 alleged that 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).

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Petitioner argues that he has triggered the Savings Clause, but the only case
that his Petition mentions is Begay v. United States, 553 U.S. 137 (2008). That
case was available to Petitioner to raise in his § 2255 motion—Petitioner filed that
motion 7 years after the Begay decision was issued. In fact, Petitioner actually
raised Begay in his § 2255 motion. (2255 Petition, Doc. 1, p. 3). Petitioner’s
arguments to the contrary are entirely conclusory; Petitioner has provided no
explanation why he believes that a case that came out in 2008 created a change of
law between November 2015 and the present.

If Petitioner believes that his §

2255 proceeding was wrongly decided, his options were to either appeal to the
Seventh Circuit or seek leave to file a successive § 2255 motion, but the
unfavorable termination of a proceeding does not mean that an argument raised
in that proceeding was not “invoked” for the purposes of the Savings Clause.
Petitioner could and did raise Begay in his § 2255 proceeding; therefore he was
accorded a reasonable opportunity to obtain earlier judicial correction.

The

Savings Clause does not apply.
Additionally, Petitioner’s argument that Begay means that his conviction
for the Illinois crime of aggravated fleeing or attempting to elude a police officer
cannot qualify as a “violent felony” is foreclosed by Welch v. United States, 604
F.3d 408, 425 (7th Cir. 2010) (“[W]e hold that the district court correctly
considered the defendant’s conviction for aggravated vehicular fleeing a violent
felony for the purposes of the ACCA.”). Although the Welch court was analyzing
the Armed Career Criminal Act, the language between that Act and the career

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offender sentencing guidelines is nearly identical. See United States v. Woods,
576 F.3d 400, 403-04 (7th Cir. 2009) (identical language between 4B1.1 and the
ACCA justifies applying analysis of one to the other).

The Welch court also

specifically analyzed the question of whether Begay required aggravated vehicular
fleeing be classified as a non-violent crime and found that it did not. 604 F.3d at
418-425.

Even if Petitioner had successfully invoked the savings clause, which

he did not, his argument fails on the merits. Accordingly, the Court will dismiss
this case with prejudice.
Disposition
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is DISMISSED with prejudice.
If Petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this Court within thirty days of the entry of judgment.

Fed. R. App. P.

4(a)(4). 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).

If

petitioner does choose to appeal and is allowed to proceed IFP, he will be
required to pay a portion of the $505.00 appellate filing fee in order to pursue his
appeal (the amount to be determined based on his prison trust fund account
records for the past six months) irrespective of the outcome of the appeal. See
Fed. R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A timely motion filed

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pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day1 appeal
deadline. It is not necessary for petitioner to obtain a certificate of appealability.
Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.

IT IS SO ORDERED.
DATED: August 16, 2017

Judge Herndon
2017.08.16
10:49:42 -05'00'
United States District Judge

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