Dorsey v. Werlich

Filing 16

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 9/28/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIE DORSEY, #20423-044,
Petitioner,
vs.

Civil No. 17-cv-1392-DRH

T.G. WERLICH,
Respondent.
MEMORANDUM and ORDER
Petitioner Willie Dorsey filed a petition for writ of habeas corpus under 28
U.S.C. § 2241 (Doc. 1) challenging the enhancement of his sentence as a career
offender under U.S.S.G. § 4B1.1. He purports to rely on Mathis v. United States,
136 S. Ct. 2243 (2016). He argues that his prior conviction in Missouri should
not have been considered as a “crime of violence” and that his prior conviction in
California should not have been considered as a “controlled substance offense.”
Respondent filed a Motion to Dismiss at Doc. 12. Petitioner filed a Response to
the Motion to Dismiss at Doc. 14.
Relevant Facts and Procedural History
On October 3, 2002, a federal grand jury in the Eastern District of Missouri
indicted Petitioner on drug charges and one assault charge. See United States v.
Dorsey, No. 02-cr-506-CDP, Indictment (E.D. Mo. Oct. 3, 2002) (E.D. Mo., Doc.
1). The indictment charged Petitioner with one count of Conspiracy to Distribute
Narcotics in violation of 21 U.S.C. § 846 and three counts of Distribution of
Narcotics in violation of 21 U.S.C. § 841(a).
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On March 11, 2004, a federal grand jury superseded the indictment. (E.D.
Mo., Doc. 12). The superseding indictment charged Petitioner with the following:
count one for Conspiracy to Distribute Narcotics in violation of 21 U.S.C. § 846;
counts two through four for Possession with Intent to Distribute Narcotics in
violation of 21 U.S.C. § 841(a); and new counts five through seven for Assaulting
an Officer in violation of 18 U.S.C. § 111.
On June 1, 2004, pursuant to a plea agreement, Petitioner pled guilty to
counts one through five. (E.D. Mo., Docs. 26, 27). Counts six and seven were
held in abeyance until sentencing. In the plea agreement, the “Waiver of PostConviction Rights” section contained the following language:
Habeas Corpus: The defendant acknowledges being guilty of the
crime to which a plea is being entered, and further states that neither
defense counsel nor the government have made representations
which are not included in this document as to the sentence to be
imposed. The defendant further agrees to waive all rights to contest
the 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.
See Plea Agreement, at 3 (E.D. Mo. June 1, 2004) (Doc. 27). During the change of
plea hearing, the following exchange took place:
[The Court]: You’re also giving up your right to file a habeas corpus
action. That’s an action where you would come back later and say
that your rights were violated somehow in these proceedings, and you
are giving up the right to file that, too, with again a limited exception.
If you later found out something that you think is prosecutorial
misconduct or ineffective assistance of counsel, you could still file a
2255, that’s what it’s called in the federal system, habeas corpus,
2255, motion to vacate, and you could still file that on those two
bases, but it would have to be something you later found out, and you
only have a short period of time under the rules to file that kind of a
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motion. So do you understand what you are giving up there?
[Petitioner]: Yes.
(Doc. 14, p. 19).
On August 20, 2004, the district court sentenced Petitioner to a term of 262
months of imprisonment with the sentences running concurrently.

(E.D. Mo,

Docs. 31, 33). Petitioner did not appeal.
Because of his prior convictions,1 Petitioner qualified as a career offender
under U.S.S.G. § 4B1.2(a). (Doc. 12, pp. 3-4; E.D. Mo. Doc. 61). Pursuant to the
career offender guidelines, he had a total offense level of 34 and a criminal history
category of VI.

Id. Therefore, his sentencing guidelines range was 262 to 327

months.
Petitioner filed a Motion to Reduce Sentence under 18 U.S.C. § 3582(c).
(E.D. Mo., Docs. 44, 49). The motion was denied because Petitioner’s sentences
were based on his career offender guidelines and not on the crack cocaine
guidelines. (E.D. Mo., Doc. 51).
Petitioner filed a motion under 28 U.S.C. § 2255, challenging his career
offender guideline designation. (E.D. Mo., Doc. 59). The motion was dismissed
after the Supreme Court issued its ruling in Beckles v. United States, 137 S. Ct.
886 (2017). (E.D. Mo. Doc. 61).

1

Petitioner had the following relevant prior convictions: (1) 12/27/1977, Second Degree Burglary
(Missouri); (2) 4/26/1986, Possession with Intent to Distribute Cocaine, 18 U.S.C. § 841 (E.D.
Mo.); (3) 6/17/1994, Second Degree Assault and Armed Criminal Action (Missouri); and (4)
2/10/1995, Transportation of Cocaine, CA Code 11352(a), 35154) (California).

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Legal Standards Applicable to Section 2241
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may
not be used to raise claims of legal error in conviction or sentencing, but are
limited to challenges regarding the execution of a sentence. See Valona v. United
States, 138 F.3d 693, 694 (7th Cir.1998). A prisoner who has been convicted in
federal court is generally limited to challenging his conviction and sentence by
bringing a motion pursuant to 28 U.S.C. § 2255 in the court that sentenced him.
A motion under § 2255 is ordinarily the “exclusive means for a federal
prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir.
2003). And, a prisoner is generally limited to bringing only one motion under §
2255. A prisoner may not file a “second or successive” motion unless a panel of
the appropriate court of appeals certifies that such motion contains 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).
However, it is possible, under very limited circumstances, for a prisoner to
challenge his federal conviction or sentence under § 2241. 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.” The Seventh Circuit construed the savings clause in In

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re Davenport, 147 F.3d 605, 611 (7th Cir. 1998):

“A procedure for

postconviction relief can be fairly termed inadequate when it is so configured as to
deny a convicted defendant any opportunity for judicial rectification of so
fundamental a defect in his conviction as having been imprisoned for a
nonexistent offense.”
The Seventh Circuit has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. First, he
must show that he relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on a decision that he
could not have invoked in his first § 2255 motion and that case must apply
retroactively. Lastly, he must demonstrate that there has been a “fundamental
defect” in his conviction or sentence that is grave enough to be deemed a
miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
See also, Brown v. Rios, 696 F3d 638, 640 (7th Cir. 2012).
Analysis
Citing Mathis v. United States, 136 S. Ct. 2243 (2016), Petitioner argues
that his prior convictions should not have been used to enhance his sentence as a
career offender under the sentencing guidelines, U.S.S.G. § 4B1.1. Respondent
argues that the Petition should be dismissed because (1) the collateral attack is
barred by the waiver in the plea agreement, and (2) the Seventh Circuit’s decision
in Hawkins2 bars Petitioner from bringing a Mathis claim in a § 2241 petition.

2

Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), supplemented on denial of rehearing,
724 F.3d 915 (7th Cir. 2013).

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The Court finds the first ground of the Motion to Dismiss persuasive.
There is no doubt that a plea agreement may include a valid waiver of the right to
appeal and to file a collateral attack, and that such waivers are generally
enforceable, with limited exceptions. Solano v. United States, 812 F.3d 573, 577
(7th Cir. 2016). The limited exceptions are where the plea agreement itself was
involuntary, the defendant argues ineffective assistance of counsel regarding the
negotiation of the plea, the sentencing court relied on a constitutionally
impermissible factor such as race, or the sentence exceeded the statutory
maximum. Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). A waiver
of the right to bring a collateral attack on a conviction or sentence bars a § 2241
petition; the waiver does not make the remedy afforded by § 2255 inadequate or
ineffective so as to open the door to a § 2241 petition. Muse v. Daniels, 815 F.3d
265, 266 (7th Cir. 2016).

Further, a subsequent change in the law does not

render an appeal waiver involuntary. United States v. Vela, 740 F.3d 1150, 1151
(7th Cir. 2014).
The Seventh Circuit has enforced appeal waivers against challenges to
career offender designations.

United States v. Smith, 759 F.3d 702 (7th Cir.

2014); United States v. McGraw, 571 F.3d 624 (7th Cir. 2009); United States v.
Standiford, 148 F.3d 864 (7th Cir. 1998).
Petitioner argues that the plea agreement is ambiguous as to whether the
waiver was limited to only the right to bring a § 2255 motion. Petitioner bases his
argument on the fact that the plea explicitly references motions under § 2255 but

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does not reference motions under § 2241 (he raises the same argument with
respect to his change of plea hearing). This argument is frivolous; the agreement
explicitly waives the right to “contest the conviction or sentence in any postconviction proceeding” (E.D. Mo. Doc. 27, p. 3), and during the change of plea
hearing, the judge reiterated that Petitioner was giving up his right to pursue
habeas corpus actions. (Doc. 14, pp. 18-19).
Accordingly, the Court also finds that Petitioner has waived his right to file
this action.
Conclusion
For the foregoing reasons, Willie Dorsey’s Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241 (Doc. 1) is DENIED.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.

Judge Herndon
2018.09.28
16:09:20 -05'00'
United States District Judge

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Notice
If petitioner wishes to appeal the dismissal or denial of his petition, he may
file a notice of appeal with this court within sixty days of the entry of judgment.
Fed. R. App. P. 4(a)(1)(B). 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).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Fed. R. Civ. P. 59(e) must be filed no later than 28 days after the
entry of the judgment—a deadline that cannot be extended. A proper and timely
Rule 59(e) motion may toll the 60-day appeal deadline. Other motions, including
a Rule 60 motion for relief from a final judgment, order, or proceeding, do not toll
the deadline for an appeal.
It is not necessary for petitioner to obtain a certificate of appealability from
this disposition of his §2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
Cir. 2000).

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