Perkins v. True

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 1/22/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMMARO PERKINS, #07580-025,
Petitioner,
vs.
B. TRUE,
Respondent.

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Case No. 17-cv-1365-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the U.S. Penitentiary at Marion, brings
this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge his sentence.
Petitioner is serving a 180-month sentence for possession with intent to distribute
crack cocaine and marijuana, possession of a firearm by a convicted felon, and
possession of a firearm in furtherance of a drug-trafficking crime. United States

v. Perkins, Case No. 05-cr-30137-DRH (S.D. Ill) aff’d United States v. Perkins,
548 F.3d 510 (7th Cir. 2008); see also Perkins v. United States, Case No. 10-cv104-DRH (28 U.S.C. § 2255 proceeding); Perkins v. United States, No. 16-cv1114-DRH (28 U.S.C. § 2241 proceeding).
Petitioner argues that his attorney was ineffective for failing to challenge the
851 enhancement based on a prior state court conviction for unlawful delivery of
a controlled substance. (Doc. 1, p. 3). In support of this argument, Petitioner
cites to Mathis v. United States, 136 S.Ct. 2243 (2016) for the proposition that his

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previous Illinois drug convictions should not have counted as “controlled
substances offenses” under the United States Sentencing Guidelines.

Id.

Petitioner requests resentencing without the enhancement. (Doc. 1, p. 4).
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
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.

After carefully

reviewing the petition in the present case, the Court concludes that petitioner is
not entitled to relief, and the petition must be dismissed.
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.
2012)).

In this case, Petitioner is clearly attacking his sentence.

However,

Petitioner argues that § 2255 is not available to him because Mathis was decided
after his conviction, appeal, and the disposition of his § 2255 Petition. 1 It is also
not a case recognizing a new constitutional right pursuant to § 2255(f)(3).

Interestingly, Mathis was decided prior to Petitioner’s last § 2241 Petition, No. 16-cv-1114-DRH,
raising the question of why he did not address the issue at that time.
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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).
Here, Petitioner’s reliance on Mathis is misplaced. Petitioner’s position was
foreclosed by a recent Seventh Circuit decision. Specifically, that court found that
720 ILCS 570/401 does not criminalize conduct that substantially differs from the
conduct described in § 4B1.2, and that it is frivolous to argue that resentencing is
justified because the sentencing court considered an Illinois controlled substance
offense for the purposes of applying the career offender in enhancement. United

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States v. Redden, 875 F.3d 374, 374-75 (7th Cir. 2017). As the argument is
frivolous, Petitioner’s counsel could not have been ineffective for failing to raise it.
Moreover, because Petitioner has not raised a valid application of Mathis, he has
not triggered the savings clause. Accordingly, the Petition will be dismissed 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
pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day 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).

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The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.

Judge Herndon
2018.01.22
15:29:42 -06'00'
United States District Judge

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