Cooley v. Werlich

Filing 24

ORDER ADOPTING Report 20 , GRANTING Motion to Dismiss 13 , and DENYING "Motion to Deny Respondent's Motion to Dismiss" 19 . Accordingly, the Court DISMISSES WITH PREJUDICE Cooley's petition and directs the Clerk of the Court to enter judgment reflecting the same. Signed by Judge David R. Herndon on 9/5/2018. (jer)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JERRY HOWARD COOLEY,
Petitioner,
v.

No. 17-cv-1082-DRH-CJP

T.G. WERLICH,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
I.

Introduction

Pending before the Court is a July 25, 2018 Report and Recommendation
(“the Report”) issued by Magistrate Judge Clifford J. Proud. (Doc. 20). Judge
Proud recommends that the Court grant Respondent Werlich’s motion to dismiss.
(Doc. 13). The parties were allowed time to file objections to the Report and on
August 24, 2018, Petitioner Cooley filed an objection. (Doc. 23). Based on the
applicable law, the record and the following, the Court ADOPTS the Report in its
entirety.
II.

Background

Petitioner Cooley brought this pro se action for writ of habeas corpus under
28 U.S.C. § 2241 challenging the enhancement of his sentence as a career
offender under U.S.S.G § 4B1.1. (Doc. 1). On October 20, 2017, the Court
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conducted its preliminary review of the complaint pursuant to 28 U.S.C. § 1915A,
the matter was referred to Judge Proud, and Petitioner Cooley was permitted to
proceed with the present action. (Doc. 3).
Thereafter, Respondent Werlich filed a motion to dismiss. (Doc. 13).
Specifically, Respondent Werlich alleges that this case should be summarily
dismissed for two reasons: first, circuit precedent makes clear that an incorrectly
calculated advisory guidelines range is not reviewable in a post-conviction
proceeding. Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), reh’g en

banc denied, Hawkins v. United States, 724 F.3d 915 (7th Cir. 2013); United
States v. Coleman, 763 F.3d 706 (7th Cir. 2014), as amended on denial of reh'g
and reh'g en banc (Oct. 16, 2014); and, secondly, Petitioner Cooley had no right to
bring his petition in the first place because he entered into a plea agreement
which bargained away his right to pursue post-conviction relief. (Doc. 13).
Pursuant to 28 U.S.C. 636(b)(1)(B), Judge Proud submitted the Report on
July 25, 2018. (Doc. 20). The Report recommends that the Court grant
Respondent Werlich’s motion to dismiss and was sent to the parties with a notice
informing them of their right to appeal by way of filing objections within 14 days
of service of the Report. On August 3, 2018, Petitioner Cooley filed a motion for
extension of time to file objections as to the Report. (Doc. 21). The Court granted
in part and denied in part the above motion by allowing parties to file objections
to the Report by August 24, 2018. (Doc. 22). On August 24, 2018, Petitioner
Cooley filed an objection to the Report. (Doc. 23).

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III.

Motion to Dismiss

Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a
claim upon which relief can be granted. Hallinan v. Fraternal Order of Police

Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court
explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule
12(b)(6) dismissal is warranted if the complaint fails to set forth “enough facts to
state a claim to relief that is plausible on its face.”
Although federal pleading standards were retooled by Twombly and Ashcroft v.

Iqbal, 556 U.S. 662 (2009), notice pleading remains all that is required in a
complaint. “A plaintiff still must provide only ‘enough detail to give the defendant
fair notice of what the claim is and the grounds upon which it rests and, through
his allegations, show that it is plausible, rather than merely speculative, that he is
entitled to relief.’” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)
(citation omitted).
The Seventh Circuit offers further guidance on what a complaint must do to
withstand 12(b)(6) dismissal. The Court in Pugh v. Tribune Co., 521 F.3d 686,
699 (7th Cir. 2008), reiterated the standard: “surviving a Rule 12(b)(6) motion
requires more than labels and conclusions;” the complaint’s allegations must
“raise a right to relief above the speculative level.” A plaintiff’s claim “must be
plausible on its face,” that is, “the complaint must establish a non-negligible

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probability that the claim is valid.” Smith v. Medical Benefit Administrators

Group, Inc., 639 F.3d 277, 281 (7th Cir.2011).

IV.

Analysis

The Court's review of the Report is governed by 28 U.S.C. § 636(b)(1),
which provides in part:
A judge of the court shall make a de novo determination of those
portions
of
the report or
specified
proposed
findings
or recommendations to which objection is made. A judge of the court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the
magistrate judge with instructions.
Fed. R. Civ. P. 72(b) also directs that the Court must only make a de

novo determination of those portions of the report and recommendation to which
specific written objection has been made. Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999). If no objection or only a partial objection is made, the
Court reviews those unobjected portions for clear error. Id. In addition, failure
to file objections with the district court “waives appellate review of both factual
and legal questions.” Id. Under the clear error standard, the Court can only
overturn a Magistrate Judge's ruling if the Court is left with “the definite and firm
conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co.,

Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
Petitioner Cooley’s Writ of Habeas Corpus Under 28 U.S.C. §2241 Fails.
In his claim, Petitioner Cooley alleges that his prior Missouri conviction for
second degree robbery no longer qualifies as a crime of violence for purposes of
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the career offender enhancement under U.S.S.G. § 4B1.1 and now challenges the
enhancement of his sentence under U.S.S.G. § 4B1.1. Respondent Werlich moves
to dismiss this claim for two reasons. First, Respondent Werlich, in their motion
to dismiss, argues that Petitioner Cooley cannot bring his claim in a § 2241
petition because a sentence calculated under the advisory Sentencing Guidelines
does not constitute a miscarriage of justice. Additionally, and in the alternative,
Respondent Werlich argues that Petitioner Cooley waived his right to bring a
collateral attack by entering into a plea agreement that waived such rights.
Petitioner Cooley claims that his confinement is unlawful pursuant to Mathis v.

United States, 136 S. Ct. 2243 (2016) because “the Career Offender Statute has
been broadened by the use of the prior offense that does not constitute a crime of
violence under the Career Offender Meaning.” (Doc. 1).
As to Petitioner Cooley’s petition Judge Proud found that circuit precedent
makes clear that an incorrectly calculated advisory guidelines range is not
reviewable in a post-conviction proceeding when the defendant was sentenced in
the post-Booker era. Specifically, Judge Proud found that:
The issue in Hawkins was the same as the issue raised by petitioner
here: the use of a prior conviction that would allegedly no longer
qualify as a predicate conviction for the career offender enhancement
under current law. In its supplemental opinion on denial of rehearing
in Hawkins, the Court succinctly summarized its holding: “an error
in calculating a defendant's guidelines sentencing range does not
justify post-conviction relief unless the defendant had, as in Narvaez
v. United States, 674 F.3d 621 (7th Cir.2011), been sentenced in the
pre-Booker era, when the guidelines were mandatory rather than
merely advisory.” Hawkins, 724 F.3d at 916. Under the binding
precedent of Hawkins, the petition should be dismissed.

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(Doc. 20, p. 6).
Therefore, after de novo review, the Court finds that Judge Proud was
correct in his application of why Petitioner Cooley’s petition is legally barred
under Seventh Circuit law. See Hawkins v. United States, 706 F.3d 820 (7th Cir.
2013), reh’g en banc denied, Hawkins v. United States, 724 F.3d 915 (7th Cir.
2013); United States v. Coleman, 763 F.3d 706 (7th Cir. 2014), as amended on

denial of reh'g and reh'g en banc (Oct. 16, 2014). The Court finds that Petitioner
Cooley’s objection merely takes umbrage with the current legal precedent that
prohibits post-conviction relief for an error in calculating a defendant’s sentencing
guideline range when a defendant was sentenced in the post-Booker era where
guidelines are advisory, not mandatory.
Additionally, notwithstanding Hawkins and Coleman, Petitioner Cooley’s
collateral attack is also barred by the waiver in his plea agreement which states in
part that petitioner is waiving “all rights to contest conviction or sentence in any
post-conviction proceeding, including one pursuant to Title 28, United States
Code, Section 2255, except for claims of prosecutorial misconduct or ineffective
assistance of counsel.” The record before the Court provides no reason for the
Court to doubt Judge Proud’s determination. Finally, having also reviewed all
portions of the Report to which no objections were made, the Court is satisfied
that, on its face, no clear error exists.
Conclusion
Accordingly, the Court ADOPTS the Report in its entirety (Doc. 20) and

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GRANTS Respondent Werlich’s motion to dismiss. (Doc. 13). The Court
DISMISSES with prejudice Petitioner Cooley’s petition. (Doc. 1).

Judge Herndon
2018.09.05
14:34:50 -05'00'

IT IS SO ORDERED.

United States District Judge

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