Pettes v. Werlich

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 9/5/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AARON MAURICE PETTES,
No. 11393-031,
Petitioner,

–797-DRH

vs.
T.G. WERLICH,
Respondent.
MEMORANDUM AND ORDER

Pro se Petitioner Aaron Maurice Pettes, currently incarcerated in the
Federal Correctional Institution at Greenville, Illinois (FCI-Greenville), brings this
habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the
constitutionality of his confinement.

Relying on the recent case of Mathis v.

United States, ––– U.S. ––––, 136 S. Ct. 2243 (2016) and other recent decisions,
he argues that his prior Nebraska burglary convictions should not have been used
to impose an enhanced sentence under the career offender sentencing guidelines.
This case is now before the Court for a preliminary review of the Petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts. Rule 4 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

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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, such as this action under 28 U.S.C. § 2241. Without commenting
on the merits of Petitioner's claims, the Court concludes that the Petition survives
preliminary review under Rule 4 and Rule 1(b).
BACKGROUND
On September 25, 2006, Petitioner pled guilty to 18 U.S.C. § 2113(a) for
Bank Robbery. (Doc. 1, p. 3). On January 22, 2007, Petitioner was sentenced to
151 months’ imprisonment. Id. Petitioner appealed and later filed but ultimately
dismissed a 28 U.S.C. § 2255 petition. Id.
In his criminal case, Petitioner was sentenced as a career offender pursuant
to the United States Sentencing Guidelines (USSG) at § 4B1.1. (Doc. 1, pp. 3-4).
The sentencing enhancement was based on the fact that Petitioner had at least two
prior felony convictions of either a crime of violence or a controlled substance
offense. Petitioner argues that his prior burglary convictions, under Nebraska’s
burglary statute, NEV. REV. STAT. §§ 28-905(1), 28-507, were improperly
considered predicate offenses under § 4B1.1. (Doc. 1, p. 4).

A prisoner may employ § 2241, as opposed to § 2255, to challenge his
federal conviction or sentence under very limited circumstances. Specifically, 28
U.S.C. § 2255(e) contains a “savings clause” which authorizes a federal prisoner

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to file a § 2241 petition where the remedy under § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
Here, Petitioner argues that, in light of Mathis and related authority, his
prior Nebraska convictions do not qualify as predicate offenses for a careercriminal enhancement. (Doc. 1, pp. 4-9). Petitioner apparently seeks the Court to
remove his career offender status so that he may be resentenced without the
career offender enhancement.
As the undersigned has explained in a number of prior decisions, this type
of challenge facially satisfies the conditions to be considered in a § 2241
proceeding under the savings clause of § 2255(e). See e.g., Hoskins v. Werlich,
No. 17-cv-652-DRH (S.D. Ill. July 28, 2017); Warren v. Werlich, No. 17-cv-84DRH (S.D. Ill. Mar. 27, 2017); Davis v. USA, 17-cv-379-DRH (S.D. Ill. June 14,
2017); Wadlington v. Werlich, No. 17-cv-4499-DRH (S.D. Ill. July 17, 2017).
However, as the Court has previously noted, Mathis involved the Armed Career
Criminal Act and not the federal sentencing guidelines. United States v. Hinkle,
832 F.3d 569, 574 (5th Cir. 2016). Thus, the Mathis decision may or may not be
applicable to Petitioner's sentence, where the sentencing enhancement was
determined based on the advisory sentencing guidelines and not the ACCA
statute. 1

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The Supreme Court recently held that the residual clause in USSG § 4B1.2(a) was not
subject to a vagueness challenge, distinguishing the situation where a sentence was based
on the advisory guidelines from a sentence imposed under the residual clause of the
ACCA statute. Beckles v. United States, ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145
(2017) (distinguishing Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192
L.Ed.2d 569 (2015)).
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Nonetheless, given the limited record before the Court and the stilldeveloping application of the Mathis decision, it is not plainly apparent that
Petitioner is not entitled to habeas relief. See Rule 4 of the Rules Governing §
2254 Cases in United States District Courts. Therefore, the Court finds it
appropriate to order a response to the Petition.
Disposition
IT IS HEREBY ORDERED that Respondent Werlich shall answer or
otherwise plead within thirty days of the date this order is entered (on or before
Ocotober 5, 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.
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 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.

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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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 (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.
September 5, 2017

Digitally signed by
Judge David R. Herndon
Date: 2017.09.05
17:09:30 -05'00'

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