Neely v. Werlich

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 5/23/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FREDERICK NEELY,
No. 10958-029,
Petitioner,
vs.

Case No. 18-cv-882-DRH

T.G. WERLICH,
Respondent.
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), and United States v. Hinkle, 832 F.3d 569 (5th
Cir. 2016), he should not have been subject to the career-offender enhancement
under the United States Sentencing Guidelines (“USSG”) based on his 2 previous
Iowa 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)
1

of those Rules gives this Court the authority to apply the rules to other habeas
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
On December 22, 2009, in the Northern District of Iowa, Petitioner pled
guilty to conspiring to possess with intent to distribute 50 grams or more of crack
cocaine (21 U.S.C. § § 846 and 841(a)(1)). (Doc. 1, p. 2); United States v. Neely,
Case No. 09-cr-77-LRR (N.D. Ia) (“Criminal Case”). Plaintiff was subject to the
penalties prescribed under §841(b)(1), which in his case carried a statutory
maximum penalty of life imprisonment.

See Criminal Case, Doc. 29 p. 1.

According to the Petition, he was sentenced to 360 months, under the career
offender enhancement found in the United States Sentencing Guidelines
(“USSG”), § 4B1.1 and § 4B1.2(b), because he had 2 prior state felony convictions
for controlled substance offenses. (Doc. 1, pp. 2-3). See also Criminal Case,
Doc. 29, p. 5; Doc. 93, p. 3; Doc. 39, p. 3; Doc. 85, p.3).
Petitioner’s predicate offenses were both state law convictions for
possession with intent to deliver a controlled substance (Case FECR068027
(2006) and FECR0078201(2008)), in violation of IA ST § 204.401 (now IA ST §
124.401).

(Doc. 1-1, p. 2).

Petitioner argues that in light of the decision in

Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016) and related authority, the
Iowa statute is broader than the conduct defined in the federal sentencing
guidelines at U.S.S.G. §4B1.2(b).

2

Legal Standard Applicable to § 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 which 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

3

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).
Discussion
The Court need not consider the merits of Petitioner's argument because he
cannot bring a Mathis claim in a § 2241 petition based on an allegedly erroneous
career offender determination.
There are some claims that can be raised on direct appeal but not in a
collateral attack such as a § 2255 motion or a § 2241 petition. 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

4

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

Seventh Circuit recently reiterated that the Sentencing Guidelines have been
advisory and not mandatory ever since the Supreme Court decided United States
v. Booker, 125 S.Ct. 738 (2005). Perry v. United States, 877 F.3d 751 (7th Cir.
2017).

Petitioner was sentenced in 2009, long after Booker was decided.

received a sentence that was within the statutory range.

He

Therefore, he cannot

demonstrate a miscarriage of justice so as to permit a § 2241 petition.
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

5

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 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).
IT IS SO ORDERED.

Judge Herndon
2018.05.23 19:04:22
-05'00'
United States District Judge

6