Douglas v. Werlich

Filing 4

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

BERNARD DOUGLAS,
No. 13373-026,

Petitioner,
–837-DRH
vs.

T.G. WERLICH,

Respondent.

MEMORANDUM AND ORDER

Pro se Petitioner Bernard Douglas, 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

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drug conviction should not have been used to impose an enhanced sentence
under 21 U.S.C. § 851.
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
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
In 2008, Petitioner pled guilty to 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A) for
conspiring to distribute cocaine and cocaine base. (Doc. 1, p. 3). Petitioner was
sentenced to 240 months’ imprisonment. Id. Petitioner appealed and later filed a
28 U.S.C. § 2255 petition, which was ultimately denied. Id.
In his criminal case, Petitioner’s sentence was enhanced pursuant to 21
U.S.C. § 851. (Doc. 1, pp. 3-4). The sentencing enhancement was based on the
fact that Petitioner had a previous drug conviction, of Possession of a Controlled
Substance, 720 ILCS 570/402. (Doc. 1, p. 4). Petitioner argues that this prior
drug conviction was improperly considered a predicate offense under 21 U.S.C. §

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851, under the reasoning in Mathis and related cases. (Doc. 1, pp. 3-8).

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
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 Illinois drug conviction does not qualify as a predicate offense for a § 851
enhancement. (Doc. 1, pp. 3-8). Petitioner apparently seeks the Court to hold
that the § 851 enhancement was improper so that he may be resentenced without
the 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. 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 21 U.S.C. § 851 and not

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the ACCA statute.
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
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 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.

Digitally signed by
Judge David R. Herndon
Date: 2017.09.06
13:07:50 -05'00'

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