Baker 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

HOWARD BAKER,
#14954-026,
Petitioner,
vs.
T. G. WERLICH,
Respondent.

Case No. 17-cv-841-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Howard Baker is currently incarcerated in the Federal
Correctional Institution located in Greenville, Illinois (“FCI-Greenville”). He filed
this habeas corpus action pursuant to 28 U.S.C. § 2241 in order to challenge the
constitutionality of his confinement.

(Doc. 1, p. 1).

Relying on the Supreme

Court’s decision in Mathis v. United States, -- U.S. --, 136 S.Ct. 2243 (2016),
Baker asserts that his sentence was wrongfully enhanced based on his prior
Illinois drug conviction(s). Id.
This matter is now before the Court for preliminary review of the § 2241
Petition. Rule 4 of the Federal Rules Governing Section 2254 Cases in United
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States District Courts provides that upon preliminary consideration by the district
judge, “[i]f it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court, the
judge shall make an order for its summary dismissal and cause the petitioner to
be notified.” 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 Rule 4 and Rule 1(b).
I.

Background

In 2009, Baker was charged with possession with intent to distribute crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). United States v.

Baker, No. 09-CR-20055-MPM-DGB-1 (C.D. Ill. 2009) (“criminal case”). He was
found guilty following a jury trial on November 3, 2009. (Doc. 45, criminal case).
The United States District Court for the Central District of Illinois sentenced him
as a career offender to an enhanced term of 360 months’ imprisonment, based on
his prior state drug conviction(s). (Doc. 49, criminal case). He appealed, and the
Seventh Circuit Court of Appeals affirmed the judgment of the district court on
August 23, 2011. United States v. Baker, 655 F.3d 677 (7th Cir. 2011) (Doc. 53,
criminal case).
On August 23, 2012, Baker filed a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 in the Central District of Illinois.

Baker v.

United States, No. 12-CV-2221 (C.D. Ill. 2012) (“collateral attack”). He argued
that his trial counsel was ineffective. Id. The district court denied the § 2255

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motion. Baker v. United States, 2013 WL 5642096 (C.D. Ill. 2013). Because
Baker made no substantial showing of the denial of a constitutional right, the
district court also denied a certificate of appealability. Id.
Baker filed a notice of appeal from the denial of his § 2255 motion. Baker

v. United States, App. No. 13-3774 (7th Cir.). The Seventh Circuit construed the
notice as an application for a certificate of appealability and denied the request on
April 10, 2014. Id. (Doc. 4).
He then filed an application for an order authorizing a second or successive
§ 2255 motion.

Baker v. United States, App. No. 16-2422 (7th Cir.). In the

application, Baker requested permission to challenge his sentence under Johnson

v. United States, -- U.S. --, 135 S.Ct. 2551 (2015), which held that the residual
clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. Id.
(Doc. 6).

The Seventh Circuit denied the application, after determining that

Baker’s sentence was not impacted by Johnson. Id. His sentence as a career
offender was instead based on two prior felony convictions for unlawful delivery of
a controlled substance. Id.
Following the Supreme Court’s decision in Mathis v. United States, -- U.S. -, 136 S.Ct. 2243 (2016), Baker filed another application for an order authorizing
a second or successive § 2255 motion. Baker v. United States, App. No. 17-2067
(7th Cir.). The Seventh Circuit explained that Mathis “cannot serve as the basis
for a successive § 2255 petition, because it is a case of statutory interpretation.”

Id. (Doc. 2) (citing Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016)).

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Accordingly, the Seventh Circuit denied the application on May 26, 2017. Id.
II.

Habeas Petition

In the instant § 2241 Petition, Baker now challenges his enhanced sentence
in light of the Supreme Court’s decision in Mathis v. United States, -- U.S. --, 136
S.Ct. 2243 (2016). He also points to the Fifth Circuit’s decision in United States

v. Hinkle, 832 F.3d 569 (5th Cir. 2016), in support of his challenge. (Doc. 1, pp.
1-15). Baker maintains that his Illinois drug conviction(s) pursuant to 720 ILCS
§ 570/401 no longer support his enhanced sentence under Mathis and Hinkle. Id.
Because the Illinois state statute criminalizes conduct that falls outside of the
conduct proscribed by the Sentencing Guidelines, Baker argues that his drug
conviction(s) cannot be used to support his sentence as a career offender. Id.
(citing Descamps v. United States, -- U.S. --, 133 S.Ct. 2276 (2013)).
III.

Discussion

A federally convicted person may ordinarily challenge his conviction and
sentence by bringing a motion pursuant to § 2255 in the court that sentenced
him. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (citing Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012)). A § 2255 motion is ordinarily the “exclusive
means for a federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d
214, 217 (7th Cir. 2003). The statute generally limits a prisoner to one challenge
under § 2255, and Baker has already filed a § 2255 motion.
A prisoner may not file a “second or successive” § 2255 motion unless a
panel of the appropriate court of appeals certifies that such motion contains

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either: (1) newly discovered evidence “sufficient to establish by clear and
convincing 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). Baker already sought leave to file a second or successive
§ 2255 motion to pursue the arguments he now makes under Mathis, but his
request was denied.
Section 2255(e) contains a “savings clause” that 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.” See 28 U.S.C. § 2255(e); United

States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).

Section 2255 is

inadequate or ineffective when three requirements are met: (1) the petition relies
on a new case of statutory interpretation rather than a constitutional decision;
(2) the case was decided after his first § 2255 motion but is retroactive; and
(3) the alleged error results in a miscarriage of justice. In re Davenport, 147 F.3d
605, 611 (7th Cir. 1998); Brown v. Caraway, 719 F.3d at 586; Brown v. Rios, 696
F.3d at 640; Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012).
Baker claims that he is one of those for whom the § 2255 motion is
inadequate or ineffective to test the legality of his detention. He relies on Mathis,
which is a statutory interpretation case that satisfies the first Davenport
requirement.

See Dawkins, 829 F.3d at 551 (Because Mathis “is a case of

statutory interpretation,” claims based on Mathis “must be brought, if at all, in a

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petition under 28 U.S.C. § 2241.”); 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 § 2241 Petition
also satisfies the second Davenport requirement. Baker could not have relied on
this case in his original § 2255 motion.

Moreover, the Seventh Circuit has

indicated that Mathis announced a substantive rule and, under controlling
precedent, is retroactively applicable. See Dawkins, 829 F.3d at 551; Montana v.

Cross, 829 F.3d 775, 783 (7th Cir. 2016); Narvaez v. United States, 674 F.3d
621, 625 (7th Cir. 2011). Finally, the alleged increase in Baker’s sentence based
on the career offender enhancement could be deemed a miscarriage of justice.
Under the circumstances, the § 2241 Petition facially satisfies the Davenport
requirements and warrants further review.
Whether Baker is entitled to relief remains to be seen.

The Supreme

Court’s decision in Mathis dealt with the ACCA and not the federal sentencing
guidelines.

United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016).

Accordingly, it is unclear whether Mathis applies to his sentence, given that the
sentence enhancement was based on the advisory sentencing guidelines.

The

Supreme Court has also held that the residual clause in U.S.S.G. § 4B1.2(a) was
not subject to a vagueness challenge, distinguishing a sentence imposed under the
advisory guidelines from a sentence imposed under the residual clause of the
ACCA statute. Beckles v. United States, No. 15-8544, 2017 WL 855781 (Mar. 6,
2017) (distinguishing Johnson, 135 S.Ct. 2551 (2015)).

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Given the limited record before the Court and the developing application of

Mathis, it is not plainly apparent that relief is unwarranted. See Rule 4 of the
Rules Governing § 2254 Cases in United States District Courts. Therefore, the
Court deems it appropriate to order a response to the § 2241 Petition.
IV.

Disposition

IT IS HEREBY 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. 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.
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.

Petitioner

is

ADVISED

of

his

continuing

obligation

to

keep

the

Clerk (and each opposing party) informed of any change in his whereabouts

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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.
Failure to provide such notice may result in dismissal of this action. See FED. R.
CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 5, 2017

Digitally signed by
Judge David R. Herndon
Date: 2017.09.05
15:46:28 -05'00'
United States District Judge

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