Perry v. Werlich

Filing 6

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 4/10/2018. (tjk)

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

Case No. 18

–0028-DRH

vs.
T.G. WERLICH,
Respondent.
MEMORANDUM AND ORDER

Petitioner Trevor Perry is currently incarcerated in the Federal Correctional
Institution located at Greenville, Illinois (“FCI-Greenville”). He brings this habeas
corpus action pursuant to 28 U.S.C. § 2241. The original Petition is superseded
and replaced by the Amended Petition, which is now before the Court for
consideration.
In the Amended Petition, Perry asserts that in light of Mathis v. United

States, 579 U.S. ––, 136 S. Ct. 2243 (2016), United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016), and United States v. Madkins, 866 F.3d 1136 (10th Cir.
2017), he should not have been subject to the career offender enhancement under
the United States Sentencing Guidelines.

Perry argues that his prior Indiana

conviction for dealing in cocaine or narcotic drugs no longer qualifies as a
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“controlled substance offense” that triggers an enhanced sentence under the
Sentencing Guidelines. The crime of conviction allegedly covers a broader swath
of conduct than the generic federal offense because it criminalizes “financing the
delivery” of cocaine. Perry claims that the trial court misclassified the Indiana
cocaine conviction as a predicate offense in light of Mathis, and he asks this Court
to vacate his enhanced sentence.
This matter is now before the Court for review of the Amended Petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District
Courts, which 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.
It is not plainly apparent that the Amended Petition should be dismissed at
screening, particularly given the still-developing application of Mathis in this
context. See, e.g., United States v. Redden, 875 F.3d 374 (7th Cir. 2017) (career
offender enhancement of sentence based on Illinois controlled substance
convictions was proper); but see United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016) (Texas offense of delivering a controlled substance includes conduct falling
outside § 4B1.2(b) and is therefore not a “controlled substance offense”); United

States v. Madkins, 866 F.3d 1136, 1145 (10th Cir. 2017) (same conclusion about
Kansas law).

In light of this, the Court concludes that the Amended Petition

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survives preliminary review under Rule 4 and Rule 1(b). Accordingly, a response
shall be ordered.
Disposition
IT IS HEREBY ORDERED that Respondent Werlich shall answer or
otherwise plead within thirty days of the date this order is entered (on or before
May 10, 2018).1 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 ALSO ORDERED that pursuant to Local Rule 72.1(a)(2), this cause
is referred to United States Magistrate Judge Clifford J. Proud for further pretrial 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 during the
pendency of this action. This notification shall be done in writing and not later
than seven (7) days after a transfer or other change in address occurs. Failure to
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The response date ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only. See SDIL-EFR 3.

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provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.

Judge Herndon
2018.04.10
11:18:39 -05'00'

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