Perry v. Werlich

Filing 24

ORDER DISMISSING CASE with prejudice, granting 14 MOTION to Dismiss for Failure to State a Claim filed by T. G. Werlich. Signed by Judge David R. Herndon on 10/19/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TREVOR PERRY,
No. 08664-028,

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Petitioner,
vs.
T.G. WERLICH,
Respondent.

Case No. 18-cv-0028-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Trevor Perry filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241, challenging the enhancement of his sentence as a career
offender under the United States Sentencing Guidelines (USSG).

His original

Petition has been superseded by the Amended Petition at Doc. 5. He relies on
Mathis v. United States, 136 S. Ct. 2243 (2016).

Now before the Court is

Respondent’s Motion to Dismiss. (Doc. 14). Perry responded to the motion at
Doc. 22, and filed a notice regarding supplemental authority at Doc. 23.
Relevant Facts and Procedural History
Perry was convicted in the Southern District of Indiana of conspiracy to
distribute less than 5 grams of cocaine, in violation of 21 U.S.C. § 841(a) and
§ 846, following a jury trial. (Doc. 5, p. 2); United States v. Perkins, Perry, et al.,
Case No. 08-cr-0013-RLY-CMM-9 (S.D. Ind.).

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Judgment was entered on

December 29, 2008, sentencing Perry to 327 months’ imprisonment. (Doc. 307
in criminal case).
Perry’s conviction and sentence were affirmed on direct appeal.

United

States v. Neighbors, 590 F.3d 485, 498-99 (7th Cir. 2009) (consolidated case
with co-defendants). His first motion under 28 U.S.C. § 2255, filed in 2011, was
denied on February 12, 2014. Perry v. United States, Case No. 11-cv-0045 (S.D.
Ind.) (Doc. 39). On Aug. 25, 2015, he filed a previous habeas petition in this
Court, Perry v. Cross, Case No. 15-cv-944-DRH (S.D. Ill.), raising a claim under
United States v. Johnson, 135 S. Ct. 2251 (2016). That action was dismissed
without prejudice on September 15, 2015.
Soon thereafter, Perry filed a successful motion with the Seventh Circuit
seeking authorization for a successive § 2255 motion to pursue the Johnson
claim. On October 26, 2015, he filed the successive § 2255 motion in the district
court, Perry v. United States, Case No. 15-cv-145 (S.D. Ind.).

However, the

motion was denied on May 17, 2017, pursuant to Beckles v. United States, 137
S. Ct. 886 (2017) (holding that the Sentencing Guidelines are not subject to a
vagueness challenge under the Due Process Clause). (Doc. 27 in Case No. 15-cv145).
Grounds for Habeas Relief
Perry asserts that in light of Mathis v. United States, 136 S. Ct. 2243
(2016), his Indiana conviction for dealing in cocaine no longer qualifies as a
predicate “controlled substance offense” for purposes of the career-offender

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guideline enhancement.

Applying the analysis in Mathis as well as in United

States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and United States v. Madkins,
866 F.3d 1136 (10th Cir. 2017), he argues that his conviction under Ind. Code
§ 35-48-4-1(a)(2) does not fit the definition of “controlled substance offense” found
in the Sentencing Guidelines. (Doc. 5, pp. 10-12). According to Perry, this statute
is indivisible and criminalizes conduct (specifically, “financing the delivery” of
cocaine) that falls outside the federal generic offense defined at USSG § 4B1.2(b).
(Doc. 5, pp. 13-21). He argues in the alternative that if the statute is found to be
divisible, it is still overbroad when compared to the federal controlled substance
definition, because it sets forth different penalties for delivery of differing
quantities of drugs. (Doc. 5, pp. 21-23).
Motion to Dismiss
Respondent argues that the Petition fails to state a claim upon which relief
may be granted, and should be dismissed under Federal Rule of Civil Procedure
12(b)(6). (Doc. 14). The motion asserts that under the binding precedent set
forth in Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), supplemented
on denial of rehearing, 724 F.3d 915 (7th Cir. 2013), Perry cannot seek relief in
this action under § 2241.
Applicable Legal Standards
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

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limited to challenges regarding the execution of a sentence. See Valona v. United
States, 138 F.3d 693, 694 (7th Cir. 1998).
Aside from the direct appeal process, 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 which sentenced
him. 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). And,
a prisoner is generally limited to only one challenge of his conviction and sentence
under § 2255. 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 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.” 28 U.S.C. § 2255(e). See United States v. Prevatte, 300
F.3d 792, 798-99 (7th Cir.2002).

The Seventh Circuit construed the savings

clause in In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998): “A procedure for

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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
Perry argues at length that the Indiana statute under which he was
convicted for dealing in cocaine no longer qualifies as a predicate “controlled
substance offense” for purposes of the career-offender USSG enhancement. (Doc.
5, pp. 13-26). However, the Court need not decide the merits of this argument
because, as Respondent points out, Perry cannot bring this Mathis claim in a
§ 2241 petition.
There are some errors that can be raised on direct appeal but not in a
collateral attack such as a § 2255 motion or a § 2241 petition. In the Seventh

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Circuit, a claim that a defendant was erroneously treated as a career offender
under the advisory Sentencing Guidelines is one such claim. Hawkins v. United
States, 706 F.3d 820 (7th Cir. 2013), supplemented on denial of rehearing, 724
F.3d 915 (7th Cir. 2013). See also United States v. Coleman, 763 F.3d 706,
708–09 (7th Cir. 2014) (“[W]e held in Hawkins that the error in calculating the
Guidelines range did not constitute a miscarriage of justice for § 2255 purposes
given the advisory nature of the Guidelines and the district court's determination
that the sentence was appropriate and that it did not exceed the statutory
maximum.”)
The Sentencing Guidelines have been advisory and not mandatory since the
Supreme Court decided United States v. Booker, 125 S. Ct. 738 (2005). Perry v.
United States, 877 F.3d 751, 754 (7th Cir. 2017). Perry was sentenced in 2008,
well after the Booker decision. According to the Motion to Dismiss, Perry’s PSR
(which is not part of the record available to this Court) calculated a total guideline
range of 324-360 months. (Doc. 14, p. 2). His applicable statutory sentencing
range was 0-30 years, pursuant to 28 U.S.C. § 841, which Perry admitted was
correct in his appeal. United States v. Neighbors, 590 F.3d 485, 499 (7th Cir.
2009); (see also Doc. 292, p. 2 in criminal case). Perry’s 327-month sentence fell
below the statutory maximum of 30 years (360 months).
Perry argues that he could not have brought his claim under § 2255
because the argument he raises was foreclosed to him in this Circuit until after
Mathis. (Doc. 5, pp. 27-28). Even if this premise is accepted to meet the second

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of the Davenport criteria, Hawkins dictates that an erroneous application of the
advisory guidelines does not amount to a “miscarriage of justice” (the third
Davenport factor), so long as the sentence is within the applicable statutory limit.
Perry’s Petition does not, therefore, meet the criteria to bring his claim within the
savings clause of § 2255(e).
Perry argues in his response to the Motion to Dismiss that Hawkins does
not apply to his case, and that he has a constitutional due process right to be
sentenced based on accurate information.

(Doc. 22).

According to Perry, his

sentence was based on inaccurate information because the Indiana drug
conviction no longer qualifies, post-Mathis, as a predicate crime for the careeroffender enhancement.
This attempt to distinguish Hawkins is unavailing. A defendant does have
a due process right to be sentenced based on accurate information. U.S. ex rel.
Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984) (citing United States v. Tucker,
404 U.S. 443, 445-46, 92 S. Ct. 589, 591 (1972) and Townsend v. Burke, 334
U.S. 736, 68 S. Ct. 1252 (1948)). However, Perry misunderstands the scope of
that right.
Due process is violated by reliance on factually incorrect information at
sentencing.

In Townsend, the sentencing court mistakenly thought that the

defendant had been convicted on several charges when he in fact had been
acquitted or the charges had been dropped.
S. Ct. at 1255.

Townsend, 334 U.S. at 740-41, 68

In Tucker, the sentencing court was unaware that two of the

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defendant’s prior convictions were invalid because they had been obtained in
violation of his right to counsel. Tucker, 404 U.S. at 447-48, 92 S. Ct. at 592. In
Welch, the sentencing court thought that the defendant had been previously
convicted of armed robbery, but the prior conviction was only for robbery. Welch,
738 F.2d at 865. See also, United States v. Melendez, 819 F.3d 1006, 1012 (7th
Cir. 2016) (drug quantity); United States v. Jones, 454 F.3d 642, 652 (7th Cir.
2006) (court considered prior conviction that had been overturned).
In Perry’s case, the allegedly inaccurate information is not the fact of his
prior conviction; it is the conclusion that the prior conviction qualified as a
predicate crime for the career offender enhancement. The question of whether a
prior crime qualifies as predicate crime is a legal question, not a factual one;
therefore, he does not have a viable constitutional due process challenge.
Perry disputes this principle, and attempts to distinguish Hawkins. (Docs.
22, 23). However, his argument is unconvincing, and the authorities he cites do
not support his position. For example, Narvaez v. United States, 674 F.3d 621
(7th Cir. 2010), allowed relief from a pre-Booker sentence imposed when the
Sentencing Guidelines were mandatory; it does not help Perry’s challenge to his
post-Booker sentence. (Doc. 22, pp. 11-12). United States v. Edwards, 836 F.3d
831 (7th Cir. 2017), is distinguishable because it was a direct appeal, not a
habeas challenge. (Doc. 22, pp. 14-15). United States v. Kerley, 838 F.2d 932,
940-41 (7th Cir. 1988) found that the sentencing judge relied on inaccurate
factual information regarding the defendant’s conduct when formulating the

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sentence. (Doc. 22, p. 8). Likewise, the § 2255 challenge (filed jointly by the
Government and the defendant) in United States v. Dixie, Case No. 07-cr-33-TLS,
2014 WL 3384653 at *1-2, 2014 U.S. Dist. Lexis 93718 (N.D. Ind. July 10, 2014),
was based on a factual error (the weight of the drug) that affected sentencing.
(Doc. 22, pp. 8-10).

Again, the case Perry raises in his “Notice Regarding

Supplemental Authority” (Doc. 23) involved a factual error relied upon during
sentencing, not a legal error. (Doc. 23, pp. 3-7). United States v. Miller, 900
F.3d 509, 513-14 (7th Cir. 2018) (remanding for resentencing on due process
grounds because judge miscounted defendant’s prior felony convictions at 6,
rather than the correct 5 priors).
Perry cites no case wherein an erroneous determination of a legal question
was held to be the kind of “inaccurate information” which violated due process,
and allowed a challenge to a guideline sentence in the context of a habeas action.
This Court’s independent research has not identified such a case.
In short, there is no meaningful way to distinguish Hawkins from this case.
The issue in Hawkins was the same as the issue raised by Perry here: the use of
a prior conviction that would allegedly no longer qualify as a predicate conviction
for the career-offender guideline 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 postconviction relief unless the defendant had,
as in Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), been sentenced in

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the pre-Booker era, when the guidelines were mandatory rather than merely
advisory.” Hawkins, 724 F.3d at 916. Contrary to Perry’s argument that this
Court should disregard Hawkins (Doc. 22, pp. 16-17), it remains binding
precedent in this Circuit. Accordingly, the Petition must be dismissed.
Disposition
For the foregoing reasons, Respondent’s Motion to Dismiss (Doc. 14) is
GRANTED.
Perry’s Amended Petition for a Writ of Habeas Corpus under 28 U.S.C.
§ 2241 (Doc. 5) is DENIED. This action is DISMISSED WITH PREJUDICE.
The Clerk of Court shall enter judgment in favor of Respondent.
If Petitioner wishes to appeal the dismissal of this action, his notice of
appeal must be filed with this Court within 60 days of the entry of judgment. FED.
R. APP. P. 4(a)(1(A). A motion for leave to appeal in forma pauperis (“IFP”) must
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 liable for a portion of the $505.00 appellate filing fee (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 proper and timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R.

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APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28)
days after the entry of the judgment, and this 28-day deadline cannot be extended.
Other motions, including a Rule 60 motion for relief from a final judgment, 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).
IT IS SO ORDERED.

Judge Herndon
2018.10.19 09:57:17 -05'00'

United States District Judge

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