Beasley v. Werlich

Filing 3

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 7/6/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD PIERRE BEASLEY,
Petitioner,
vs.
T.G. WERLICH,
Respondent.

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Case No. 18-cv-1125-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in Federal Correctional Institution
Greenville, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge his sentence. Petitioner is serving a 447-month sentence on 8 counts: 1)
Conspiracy in violation of 18 U.S.C. §§ 371, 2113(a),(d); 2) Armed Bank Robbery
in violation of 18 U.S.C. §§ 2, 2113(a),(d), 3) Use of a Firearm in a Crime of
Violence in violation of 18 U.S.C. §§ 2, 924(c)(1); 4) Use of a Firearm in a Crime
of Violence in violation of 18 U.S.C. §§ 2, 924(c)(1), 5) Armed Bank Robbery in
violation of 18 U.S.C. §§ 2, 2113(a), (d); 6) Use of a Firearm in a Crime of
Violence in violation of 18 U.S.C. §§ 2, 924(c)(1); 7) Use of a Firearm in a Crime
of Violence, 18 U.S.C. §§ 2, 924(c)(1); 8) Possession of an Illegal Firearm in
violation of 26 U.S.C. §§ 5841, 5845(a)(2) and 5861(d).

(Doc. 1, pp. 7-8).

Petitioner was sentenced to 147 months on the underlying substantive crimes
(conspiracy, armed bank robbery, and possession). (Doc. 1, p. 12). Additionally,
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he received 120 months on Count 3, 60 months on Count 4, 240 months on
Count 6, and 60 months on Count 7, (the use of a firearm counts). Id.
Petitioner bases his argument on Dean v. United States, 137 S.Ct. 1170
(2017). Specifically, he argues that he is entitled to resentencing based on Dean’s
holding that nothing in § 924(c) restricts the authority of sentencing courts to
consider mandatory minimums when setting a sentence for the underlying crime.
(Doc. 1, pp. 8-9). Petitioner also invokes Mathis v. United States, 136 S.Ct. 2243
(2016). (Doc. 1, p. 1).
Rule 4 of the Rules Governing § 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 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.

After carefully

reviewing the Petition in the present case, the Court concludes that Petitioner is
not entitled to relief, and the Petition must be dismissed.
Discussion
Ordinarily, a prisoner may challenge his federal conviction or sentence only
by means of a § 2255 motion brought before the sentencing court, and this
remedy typically supersedes the writ of habeas corpus. Brown v. Caraway, 719
F.3d 583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir.
2012)).

In this case, Petitioner is clearly attacking his sentence.

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However,

Petitioner argues that § 2255 is not available to him because Dean was decided
after his conviction, appeal, and the disposition of his § 2255 Petition.
The “savings clause” under § 2255(e) allows a federal prisoner to file a
petition under § 2241, if the remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e).

In

considering what it means to be “inadequate or ineffective,” the Seventh Circuit
has held that a federal prisoner should be permitted to seek relief under § 2241
“only if he had no reasonable opportunity to obtain earlier judicial correction of a
fundamental defect in his conviction or sentence because the law changed after
his first 2255 motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). A
federal prisoner must meet 3 criteria in order to invoke the Savings Clause and
obtain collateral relief pursuant to § 2241. First, a prisoner “must show that he
relies on a [new] statutory-interpretation case rather than a constitutional case;”
second, he “must show that he relies on a retroactive decision that he could not
have invoked in his first § 2255 motion;” and third, “[the] sentence enhancement
[must] have been a grave enough error to be deemed a miscarriage of justice
corrigible therefore in a habeas corpus proceeding.” Brown v. Caraway, 719 F.3d
583, 586 (7th Cir. 2013) (citations omitted) (internal quotation marks omitted).
Petitioner cannot satisfy the second Davenport requirement. Dean has not
been deemed retroactively applicable by the Seventh Circuit, and other courts to
consider the question have reached the opposite conclusion. See, e.g., Taylor v.
True, No. 18-CV-0556-DRH, 2018 WL 2229323, at *3 (S.D. Ill. May 16, 2018);

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Tomkins v. United States, 2018 WL 1911805, at *20 (N.D. Ill. April 23, 2018)
(finding that Dean does not apply retroactively) (citing United States v. Carter,
2018 WL 1369908, at *3 (D. Or. Mar. 9, 2018) (concluding that “Dean is not
retroactive because it is a new procedural rule designed to enhance the accuracy
of a conviction or sentence by regulating the manner of determining the
defendant’s culpability.” (internal quotations omitted) ); United States v. Dawson,
300 F.Supp.3d 1207, 1214 (D. Or. 2018) (concluding that Dean does not apply
retroactively because the case “was about a sentencing judge’s discretion, which is
a procedural concern.”). See also Rhodes v. United States, 2018 WL 950223, at
*6 (E.D. Mo. Feb. 20, 2018) (“Dean does not apply retroactively to § 2255
proceedings under the criteria set forth in Teague v. Lane[.]” (citations omitted) );
United States v. Cooley, 2017 WL 4003355, at *2 (W.D. Mich. Sept. 12, 2017)
(dismissing § 2255 motion as untimely, as Dean was not retroactive); United
States v. Adams, 2017 WL 2829704, at *2 (W.D. Va. June 29, 2017) (same).
This includes the Fifth Circuit, which is the only court of appeals to address the
issue to date. In re Dockery, 869 F.3d 356 (Mem)(5th Cir. 2017) (Dean does not
apply retroactively to a § 2255 motion). This also includes the only other district
court in this circuit to consider the question. See, e.g., Reed v. United States,
2018 WL 453745, at *2 (N.D. Ill. Jan. 16, 2018) (finding that Dean does not apply
retroactively to case on collateral review); Hall v. United States, 2017 WL
3235438, at *3 (N.D. Ill. July 31, 2017) (finding Dean does not have retroactive
application). Petitioner makes no arguments about why these cases were wrongly

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decided or provide a compelling reason to consider Dean retroactive other than to
state in a conclusory fashion that prior case law requires that conclusion. The
Court does not agree.
Petitioner’s citation to Mathis may be his attempt to get around this
problem, because some courts have presumed that Mathis applies retroactively.
Holt v. United States, 843 F.3d 720, 721 (7th Cir. 2016). But Mathis addressed
a challenge to a sentence under the Armed Career Criminal Act, 18 U.S.C.
924(e)(“ACCA”).

136 S.Ct. at 2247.

Courts have also applied Mathis to the

career offender sentencing guidelines. United States v. Edwards, 836 F.3d 831,
834 n. 2 (7th Cir. 2016). Petitioner was not sentenced under either the ACCA or
the career offender guidelines.

In fact, he describes himself as a first time

offender. (Doc. 1, p. 10). Thus, Mathis is not applicable to his situation, and
Petitioner cannot use Mathis to trigger the savings clause. The Court finds that
Petitioner has failed to establish that he has triggered the savings clause in §
2255(e). Accordingly, the § 2241 Petition shall 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 DISMISSED with prejudice.
If Petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this Court within thirty 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).

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If

petitioner does choose to appeal and is allowed to proceed IFP, he will be
required to pay a portion of the $505.00 appellate filing fee in order to pursue his
appeal (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 timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day1 appeal
deadline. It is not necessary for petitioner to obtain a certificate of appealability.
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
2018.07.06
12:38:11 -05'00'
U.S. District Judge

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