Montague v. Werlich

Filing 3

MEMORANDUM AND ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 3/13/2018. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SOLOMON MONTAGUE,
No. 08712-424,
Petitioner,
vs.
T.G. WERLICH,
Respondent.

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Case No. 18-cv-138-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in the FCI-Greenville, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of
his confinement. He asserts that in light of Mathis v. United States, –– U.S. ––,
136 S. Ct. 2243, 2250 (2016), he should not have been subject to the careeroffender enhancement under the United States Sentencing Guidelines (“USSG”)
based on his 5 previous Illinois drug-related convictions. (Doc. 1).
This case is now before the Court for a preliminary review of the Petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts. Rule 4 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

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corpus cases, such as this action under 28 U.S.C. § 2241.

After carefully

reviewing the Petition, the Court concludes that this action is subject to dismissal.
The Petition
Following a jury trial in the Northern District of Illinois, petitioner was
convicted of conspiracy to distribute 50 grams or more of cocaine base, and
possession with intent to distribute cocaine base. (Doc. 1, p. 2). On October 8,
1998, he was sentenced to life on the conspiracy count, and to a 30-year
concurrent term for possession with intent to distribute.

His sentences were

enhanced based on his 5 previous Illinois controlled substance convictions. (Doc.
1-1, p. 2).
On direct appeal, petitioner challenged the enhancement of his sentence for
possession of a firearm and physical restraint of a victim under USSG §
2D1.1(b)(1) and § 3A1.3, respectively.

His conviction and sentences were

affirmed on direct appeal. United States v. Cavender, et al., 228 F.3d 792, 80102, 804 (7th Cir. 2000). His petition under 28 U.S.C. § 2255, based on his trial
attorney’s allegedly ineffective performance for failing to move to suppress drugs
which petitioner claimed were planted on him, was also unsuccessful.
Montagueo1 v. United States, 41 F. App'x 899, 899-900 (7th Cir. 2002). In 2008,
petitioner sought a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2),
which was denied. (Doc. 1-1, p. 3). Another § 3582(c)(2) motion was denied in
2013. Id.

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Petitioner’s surname is spelled “Montagueo” in the § 2255 action.

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Petitioner now claims that under Mathis v. United States, –– U.S. ––, 136
S. Ct. 2243, 2250 (2016), a decision which he could not have invoked in his
original § 2255 motion, it was improper to enhance his federal sentence on the
basis of his Illinois drug convictions. (Doc. 1-1, pp. 9-31). Petitioner has 5 felony
drug convictions, dating from 1989 to 1994. (Doc. 1-2, pp. 2-3). He argues that
the statutes under which he was convicted in Illinois (now found at 720 ILCS
570/401 and 720 ILCS 550/5) are broader than the federal generic offense under
21 U.S.C. § 841(a)(1). (Doc. 1-1, p. 10).
The Illinois statute criminalizing possession with intent to deliver provided
that it is unlawful “knowingly to manufacture or deliver, or possess with intent to
manufacture or deliver, a controlled or counterfeit substance[.]”

720 ILCS

570/401 (1998); (formerly Ill. Rev. Stat. Ch. 56 1/2, para. 1401). (Doc. 1-1 p. 11).
Four of petitioner’s prior convictions were under that statute. (Doc. 1-2, pp. 2-3).
The statute that covers unlawful delivery of cannabis (which petitioner violated in
one 1989 conviction) contained similar language: “It is unlawful for any person
knowingly to manufacture, deliver, or possess with intent to deliver, or
manufacture, cannabis.” 720 ILCS 550/5 (1997); (formerly Ill. Rev. Stat. Ch. 56
1/2, para. 705). (Doc. 1-1, p. 12). Petitioner contrasts these statutes with the
federal offense language, which makes it unlawful to knowingly or intentionally
“manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance[.]” 21 U.S.C. § 841(a)(1). (Doc. 11, pp. 12-13). He argues that the Illinois statutes are indivisible, and define the

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essential element of “delivery” broadly enough to include solicitation of unlawful
delivery, offering to sell without possession, and to share a controlled substance
without an exchange of consideration. (Doc. 1-1, p. 10-31). He concludes that
because § 841(a)(1) does not criminalize solicitation of unlawful delivery of a
controlled substance, an offer to sell, or sharing a controlled substance, the
elements of the Illinois crimes are overly broad and do not match the federal
statute. Id. On this basis, petitioner seeks to be resentenced without the allegedly
improper enhancements.
Discussion
As a general matter, “28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide
federal prisoners with distinct forms of collateral relief. Section 2255 applies to
challenges to the validity of convictions and sentences, whereas § 2241 applies to
challenges to the fact or duration of confinement.” Hill v. Werlinger, 695 F.3d
644, 645 (7th Cir. 2012) (citing Walker v. O'Brien, 216 F.3d 626, 629 (7th Cir.
2000). See also Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998). Here, Petitioner is attacking
his conviction and sentence, which points to § 2255 as the proper avenue for
relief.
Under very limited circumstances, a prisoner may employ § 2241 to
challenge his federal conviction or sentence.

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

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his detention.” 28 U.S.C. § 2255(e). See Hill, 695 F.3d at 648 (“‘Inadequate or
ineffective’ means that ‘a legal theory that could not have been presented under §
2255 establishes the petitioner’s actual innocence.’”) (citing Taylor v. Gilkey, 314
F.3d 832, 835 (7th Cir. 2002). See also United States v. Prevatte, 300 F.3d 792,
798-99 (7th Cir. 2002); In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998)
(§ 2255 limitation on filing successive motions does not render it an inadequate
remedy for a prisoner who had filed a prior § 2255 motion).
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).
This Court has found that a collateral attack invoking Mathis v. United
States, –– U.S. ––, 136 S. Ct. 2243, 2250 (2016), facially satisfies the three
conditions which would allow consideration in a § 2241 proceeding under the
savings clause of § 2255(e). See e.g., Hoskins v. Werlich, No. 17-cv-652-DRH
(S.D. Ill. July 28, 2017); Wadlington v. Werlich, No. 17-cv-449-DRH (S.D. Ill. July
17, 2017); Davis v. USA, 17-cv-379-DRH (S.D. Ill. June 14, 2017); Warren v.

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Werlich, No. 17-cv-84-DRH (S.D. Ill. Mar. 27, 2017).

However, the Seventh

Circuit on November 8, 2017, issued an opinion squarely rejecting a challenge to
the enhancement of a federal sentence that had been based on prior Illinois drug
convictions.

United States v. Redden, 875 F.3d 374 (7th Cir. 2017) (career

offender enhancement of sentence based on Illinois controlled substance
convictions was proper, distinguishing United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016)). Petitioner challenges the Redden decision and argues that this
Court should not apply it to his case. (Doc. 1-1, pp. 20-27). However, Redden is
controlling authority in this Circuit, and based on the Redden opinion, the instant
Petition must be dismissed.
The Redden court, referencing the Illinois statute’s definitions relating to
controlled substance offenses, stated:
The definition that underlies the offense established by 720 ILCS
570/401 tells us that “deliver” and “delivery” mean an “actual,
constructive or attempted transfer”. 720 ILCS 570/102(h). Any
conduct meeting the state's definition of “delivery” comes within §
4B1.2(b) because “transfer” is just another word for distribute or
dispense.
Redden, 875 F.3d at 374.

Petitioner’s arguments herein notwithstanding, the

Illinois statute does not explicitly contain the element of “offering” a drug for sale,
as did the Texas statute that led the Hinkle court to invalidate Hinkle’s careeroffender enhancement.

Given the equivalence of “delivery” in Illinois with

“distribute or dispense” under the federal definitions, the Seventh Circuit
concluded that “it would be frivolous . . . to argue that Redden is not a career
offender” based on his Illinois drug convictions. Redden, 875 F.3d at 374.
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Applying the Redden court’s binding precedent, petitioner’s Illinois
controlled substance convictions under 720 ILCS 570/401 and 720 ILCS 550/5
were properly used as predicate convictions for his career-offender sentence
under the United States Sentencing Guidelines. Petitioner is therefore not entitled
to relief in this action.
Disposition
To summarize, petitioner’s claim that his Illinois drug convictions do not
qualify as “controlled substance offenses” that would trigger enhanced careeroffender sentencing is frivolous under United States v. Redden, 875 F.3d at 374.
Accordingly, the Petition is summarily DISMISSED with prejudice.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this Court within 60 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).

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 60-day appeal deadline. A Rule 59(e)

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

Judge Herndon
2018.03.13
12:56:53 -05'00'
United States District Judge

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