Roundtree v. Werlich

Filing 9

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 3/20/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JEFFREY ROUNDTREE,
#08704-028,
Petitioner,
vs.
TOM WERLICH,
Respondent.

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Case No. 18−cv–508−DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Jeffrey Roundtree, who is currently incarcerated in the Federal
Correctional Institution in Greenville, Illinois (“Greenville”), filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Relying on the
recent cases of Mathis v. United States, 136 S. Ct. 2243 (2016), Descamps v.
United States, 133 S.Ct. 2276 (2013), and Dean v. United States, 137 S.Ct.
1170 (2017), he challenges the sentence he received in United States v.
Roundtree, 07-cr-164-LJM-KPF (S.D. Ind. 2010) (“Criminal Case”). (Doc. 1, p.
6). The Court concludes that the Petition does not survive preliminary review
under Rule 4 and Rule 1(b) of the Rules Governing Section 2254 Cases in the

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United States District Courts.
Background
On March 13, 2008, Petitioner entered a guilty plea on Counts 2 and 4 in
his Criminal Case pursuant to a written plea agreement. (Doc. 2, p. 5); Criminal
Case, Doc. 64. Count 4, brought under 18 U.S.C. § 924(c), was based on
Petitioner’s brandishing of a firearm during a robbery. Criminal Case, Doc. 130.
Petitioner received a 216-month (18-year) consecutive sentence under Count 4,
though

the

crime

carried

a

mandatory

minimum

consecutive

term

of

imprisonment of not less than 25 years. (Doc. 2, p. 6); Criminal Case, Docs. 60,
130.

This sentence was to run consecutive to his 84-month (7-year) sentence for

Count 2 of the Criminal Case, also based on 18 U.S.C. § 924(c), that carried a
mandatory minimum term of imprisonment of not less than 7 years. Id.
During his plea agreement proceedings, Petitioner expressly waived his
right to appeal and his right to contest the sentence imposed and the manner in
which it was determined in any collateral attack. Criminal Case, Doc. 60, p. 4.
Petitioner has filed two unsuccessful § 2255 motions, on June 24, 2016 and June
29, 2017. Criminal Case, Docs. 148, 151.
Discussion
Rule 4 of the Rules Governing Section 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

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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 cases.
This Court need not consider the merits of this case because Petitioner
explicitly waived his right to bring this challenge in his plea agreement in the
Criminal Case.

Criminal Case, Doc. 60.

According to the plea agreement,

Petitioner agreed to waive “his right to appeal the sentence imposed” and
“waive[d] his right to contest the sentence imposed and the manner in which it
was determined in any collateral attack, including an action brought under Title
28, United States Code, Section 2255.” Id.
Where a guilty plea is entered knowingly and voluntarily, appeal waivers are
enforceable. Solano v. United States, 812 F.3d 573, 577 (7th Cir. 2016) (citing
United States v. Behrman, 235 F.3d 1049, 1051 (7th Cir. 2000)); United States
v. Sakellarion, 649 F.3d 634, 638 (7th Cir. 2011). “The appeal waiver stands or
falls with the plea agreement.” Id. Further, a waiver of the right to challenge a
conviction or sentence under § 2255 also bars a petition under § 2241 because
the waiver does not render the remedy under § 2255 inadequate or ineffective.
Muse v. Daniels, 815 F.3d 265 (7th Cir. 2016) (§ 2241 is a “form of collateral
attack”). Moreover, a subsequent change in the law does not make an appeal
waiver involuntary. United States v. Vela, 740 F.3d 1150, 1151 (7th Cir. 2014).
Petitioner does not claim that his plea or appeal and collateral attack
waivers were involuntary or invalid. In any event, a § 2241 petition is not the
appropriate vehicle for raising this argument. Petitioner also does not appear to

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have raised the issue in his previous § 2255 motions. For these reasons, the
Court finds that Petitioner waived his right to bring this collateral attack on his
sentence, and this action must be dismissed.
Disposition
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is summarily DISMISSED with prejudice
for the reasons stated above. Respondent WERLICH is also DISMISSED with
prejudice.
If Petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within sixty 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 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) motion must be filed no more than twentyeight (28) days after the entry of the judgment, and this 28-day deadline cannot be
extended.

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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

Judge Herndon
2018.03.20
09:56:22 -05'00'
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Cir. 2000).
IT IS SO ORDERED.

United States District Judge

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