Smith v. Werlich

Filing 8

MEMORANDUM AND ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 7/19/2018. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD SMITH,
Petitioner,
vs.

Case No. 18-cv-1141-DRH

T.G. WERLICH,
Respondent.
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. Although the Petition is brief, it appears that Petitioner
is serving 108 months for violating 18 U.S.C. § 922(g)(1).

United States v.

Smith, 08-cr-00038-SEB-TAB-1 (S.D. Ind. 2013) (“Criminal Case”). Petitioner
was enhanced under the sentencing guidelines due to gang activity and
obstruction of justice. (Doc. 1, pp. 6-7). Petitioner requests that his sentence
be vacated and that he be resentenced. (Doc. 1, p. 8).
Petitioner was sentenced on January 20, 2009 after a jury verdict against
him.

(Criminal Case, Doc. 61). He filed a Notice of Appeal on January 23,

2009. (Criminal Case, Doc. 62). The Seventh Circuit dismissed the appeal on
March 24, 2010. (Criminal Case, Doc. 90); United States v. Smith, 364 F. App’x
263 (7th Cir. 2010).

Petitioner also filed a motion pursuant to 28 U.S.C. §

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2255 in the district court; it was denied for lack of merit on July 26, 2013.
(Criminal Case, Doc. 94, 96).
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.
The Petition
Petitioner alleges that he relies on Mathis v. United States, 136 S.Ct.
2243 (U.S. 2016).

(Doc. 1, p. 4).

However, other than a statement to that

effect, the only argument Petitioner makes is that the grounds for his
enhancements–his gang activity and the obstruction of justice–were never
submitted to a jury or proved beyond a reasonable doubt. (Doc. 1, pp. 6-7).
Discussion
The purpose of this Order is not to address the merits of Petitioner’s
arguments, but rather to determine whether he has adequately triggered the
savings clause. 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
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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.
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 first Davenport requirement. Although his
Petition states that he relies on Mathis, his arguments do not flow from that
decision. Mathis addressed a challenge to a sentence under the Armed Career
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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, § 4B1.1.

See

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.
Petitioner was sentenced pursuant to 18 U.S.C. § 922(g) and enhanced under §
2K2.1(b)(6) and § 3C1.1.
discussed in Mathis.

(Doc. 1, pp. 8, 10).

Those provisions were not

Thus, Mathis is not applicable to his situation, and

Petitioner cannot use Mathis to trigger the savings clause.
Moreover, Petitioner’s main argument here is that a jury should have had
to determine beyond a reasonable doubt that he was eligible for the sentencing
enhancements he received.

The Seventh Circuit specifically considered that

argument during Petitioner’s direct appeal, and rejected it stating, “[w]e have
explained repeatedly, however, that Booker holds that guideline adjustments
are for the sentencing court to decide, not the jury.” Smith, 364 F. App’x at
267. (citations omitted). That means that the argument Petitioner raises here
was raised in an earlier proceeding, and was available to Petitioner prior to the
Mathis decision. Although such a finding is beyond the scope of this order, it
strongly suggests that this entire action is frivolous.
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

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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).
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 30day 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
2018.07.19
15:30:19 -05'00'
United States District Judge
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