Thigpen v. Sproul

Filing 35

ORDER. For the reasons stated in the attached Memorandum and Order, the Motion to Withdraw as Attorney (Doc. 18 ) is GRANTED. The Clerk of Court is DIRECTED to terminate the appointment of the Office of the Federal Public Defender and Attorney Skaggs. Further, Petitioner Antonio K. Thigpen's Petition (Doc. 1 ) is DISMISSED with prejudice. The Clerk is DIRECTED to close this case and enter judgment accordingly. Signed by Judge David W. Dugan on 7/14/2021. (arm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTONIO K. THIGPEN,

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Petitioner,
vs.
D. SPROUL, Warden,
Respondent.

Case No. 20-cv-663-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
Petitioner Antonio K. Thigpen pled guilty, without a plea agreement, to one count
of possession of a firearm and ammunition by a prohibited person in violation of 18
U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2) in the United States District Court for the
Northern District of Iowa, Case No. 15-CF-102 (Doc. 1; Doc. 33). On May 11, 2016,
Petitioner was sentenced to a 120-month term of imprisonment, to be followed by three
years of supervised release (Doc. 1; Doc. 33). On July 8, 2020, while incarcerated at FCIGreenville, Petitioner filed his Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241

Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) and Mathis v. United States, 136 S.Ct.
2243 (2016) (Doc. 1).
On August 18, 2020, the Court appointed the Federal Public Defender to evaluate
Assistant Federal Public Defender G. Ethan Skaggs entered
his appearance on August 25, 2020 (Doc. 9) and on December 30, 2020 filed a Motion to
Withdraw asserting that Petiti

ble (Doc. 18). On January 21,
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2021, Petitioner filed a Motion to Expedite Proceedings, which the Court construed as a

as presented in the July 8, 2020 Petition (Doc. 21).
Thereafter, Petitioner filed supplements to his Petition on February 11, 2021 (Doc.
22) and February 26, 2021 (Doc. 27). Respondent timely filed a Response (Doc. 33) to
which Petitioner replied (Doc. 34). Having reviewed the briefing, and for the reasons
Withdraw (Doc. 18) will be granted, and

Discussion
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; they may only challenge
the execution of a sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998). Thus,
aside from the direct appeal process, a prisoner who has been convicted in federal court
is ordinarily limited to challenging his conviction and sentence by bringing a motion
pursuant to 28 U.S.C. § 2255 in the court which sentenced him. Kramer v. Olson, 347 F.3d
214, 217 (7th Cir. 2003). A prisoner may only challenge his federal conviction or sentence
under 28 U.S.C. § 2241 in very limited circumstan
U.S.C. § 2255(e), which authorizes a federal prisoner to file a § 2241 petition where the

U.S.C. § 2255(e); United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
so configured as to deny a convicted
defendant any opportunity for judicial rectification of so fundamental a defect in his
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conviction as having been impris

In re Davenport, 147

F.3d 605, 611 (7th Cir. 1998) (emphasis in original). Therefore, before relief under § 2241
becomes available, Petitioner must demonstrate the inability of a § 2255 motion to cure
the alleged defect in their conviction because of a structural problem inherent in § 2255.
See Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (Petitioner must show
of success with a section 2255
clause is satisfied).

Following Davenport and its progeny, the Seventh Circuit has

developed a three-part test for determining whether § 2255 is inadequate or ineffective
so to trigger the savings clause:
1.
The federal prisoner must seek relief based on a decision of
statutory interpretation (as opposed to a decision of constitutional
interpretation, which the inmate could raise in a second or successive § 2255
motion);
2.
The statutory rule of law in question must apply retroactively
to cases on collateral review and could not have been invoked in a first §
2255 motion; and
3.

A failure to afford the prisoner collateral relief would amount

Worman v. Entzel, 953 F.3d 1004, 1008 (7th Cir. 2020) (emphasis in original) (citing Montana
v. Cross, 829 F.3d 775, 783 (7th Cir. 2016) and Beason v. Marske, 926 F.3d 932, 935 (7th Cir.
2019)); see also Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019).
A.

Rehaif Claim

Petitioner asserts a claim based on the 2019 Rehaif opinion, in which the Supreme
Court held, as a matter of statutory interpreta
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ution under 18 U.S.C.

§ 922(g) and § 924(a)(2), the government must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant category of persons
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019);
United States v. Williams, 946 F.3d 968, 970 (7th Cir. 2020).
Petitioner claims that the Government failed to prove that he knew he belonged to
the category of persons (those with a prior felony conviction or unlawful user of a
controlled substance) who were prohibited from possessing a firearm, at the time he
possessed a firearm (Doc. 1). Petitioner argues generally that he is entitled to relief

aware that his occasional marijuana use
prohibited him from possessing a firearm (Doc. 22; Doc. 27). Petitioner cites to United
States v. Cook, 970 F.3d 866, 882-884 (7th Cir. 2020), where the Seventh Circuit remanded
new trial in light of Rehaif
probability that the outcome of the trial might have been different had the government
been required to prove, and had the jury been required to find, that [defendant] knew he

require some evidence of regularity and contemporaneity opposed to isolated or sporadic
use.
As to this claim, Respondent concedes that Petitioner has met the first two
Davenport factors, namely that Rehaif is a statutory interpretation case made retroactive
to cases on collateral review, and that if Petitioner had raised this issue in his first Section

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2255 motion 1, the claim would have been foreclosed by then binding precedent (Doc. 33,
pp. 9-10). However, Respondent asserts that Petitioner cannot meet the third element
requiring a miscarriage of justice.
The Court agrees and finds that no reasonable juror could find that Petitioner was
unaware that he had been previously convicted of a felony. As detailed throughout the

ignorance are not plausible, and do not support relief here.
Indeed, at his change of plea hearing on January 15, 2016, Petitioner specifically admitted
that he had been previously convicted of two felony offenses and was an unlawful user
of marijuana when he was in possession of a firearm in October 2015. (Doc. 33-2, pp. 23, 19). As part of the guilty plea colloquy, the following exchange took place:
THE COURT: Before I can recommend that Judge Reade accept your
guilty plea, I also have to establish that there are facts which would support
a conviction in this case. Count 1 of the indictment charges you with being
a prohibited person in possession of a firearm. In order to convict you of
that offense, the Government would have to prove three things. First, that
on about October 12, 2015, here in the Northern District of Iowa, you
knowingly possessed a firearm and ammunition; specifically, a
semiautomatic Glock .40 caliber Model 23 pistol and Winnebago .40 caliber
S&W ammunition. Do you understand -- I think I said Winnebago. I meant
Winchester. Do you understand the first thing the Government would have
to prove?
DEFENDANT THIGPEN: Yes, Your Honor.

Prior to the instant § 2241 Petition, Petitioner challenged his sentence on a direct appeal. See
United States v. Thigpen, 848 F.3d 841 (8th Cir. 2017) (affirming judgment and sentence). Petitioner
also filed a motion pursuant to 28 U.S.C. § 2255 which was denied on April 30, 2019. Thigpen v.
United States, No. 18-CV-21 (N.D. Iowa).
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THE COURT: Did you knowingly possess that firearm and
ammunition that I've described here in the Northern District of Iowa on
October 12, 2015?
DEFENDANT THIGPEN: Yes, Your Honor.
THE COURT: The second thing the Government would have to
prove is that you were prohibited from possessing a firearm and
ammunition on that date. In this case, it's alleged that you were prohibited
for two reasons. First, that you had been previously convicted of an offense
punishable by a term of imprisonment exceeding one year. In fact, the
Government alleges two prior convictions; burglary in the third degree in
Linn County in 2010 and possession with intent to deliver a controlled
substance in Linn County later in 2010. The Government also asserts that
you were prohibited from possessing a firearm and ammunition on October
12, 2015, because at that time you were an unlawful user of marijuana, a
Schedule I controlled substance. Do you understand the second thing the
Government would have to prove?
DEFENDANT THIGPEN: Yes, Your Honor.
THE COURT: Were you convicted of those two felony offenses in
Linn County that I've described?
DEFENDANT THIGPEN: Yes, Your Honor.
THE COURT: And were you an unlawful user of marijuana when
you were in possession of this firearm in October of 2015?
DEFENDANT THIGPEN: Yes, Your Honor.
THE COURT: The third thing the Government would have to prove
is that the firearm and ammunition which were in your possession at that
time had crossed a state line. The Government does not have to prove that
you brought them across a state line. It only has to prove that they came
across a state line at some point in their existence prior to your possession
of them on October 12, 2015. Do you understand the third thing the
Government would have to prove?
DEFENDANT THIGPEN: Yes, Your Honor.

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THE COURT: Is it your understanding that this Glock pistol and
Winchester ammunition would have crossed a state line at some point prior
to your possession of them on October 12, 2015?
DEFENDANT THIGPEN: Yes, Your Honor.
(Doc. 33-1; pp. 3-4).

not plausible considering his admissions made during his plea colloquy and the multiple
terms of imprisonment he served which were longer than one year. See United States v.
Williams, 946 F.3d 968 (7th Cir. 2020) (Finding

nnot plausibly argue

he spend twelve years of his life in prison); see also United States v. Maez, 960 F.3d 949, 967
Rehaif, we have clarified that the government need not show that
the defendant knew his status prohibited him from possessing a firearm, but simply that

felony offenses and marijuana use prohibited him from possessing a firearm and
ammunition, are best construed as an ignorance-of-the-law defense, which is not
supported by the Rehaif opinion. Indeed, as one district court persuasively reasoned:
Rehaif requires only that the government establish the defendant knew he
belonged to a class of individuals listed in § 922(g); not that he knew that
class of individuals was prohibited from possessing firearms. Essentially
with prior felony convictions are prohibited from possessing firearms
under federal law. See United States v. Hawkins, No. 18-20155-1, 2020 WL
206465, at *4 (E.D. Mich. Jan. 14, 2020). Only where a person lacks
knowledge as to his status as a convicted felon would habeas relief be
available under Rehaif
Rehaif did not graft onto § 922(g) an
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ignorance-of-the-law defense by which every defendant could escape
conviction if he was unaware of this provision of the Un
prohibiting him from possessing a firearm. Bowens, 938 F.3d at 797.
Ignorance of the law or a mistake of law is not a viable defense. See Cheek v.
United States, 498 U.S. 192, 199 (1991).
United States v. Sargent, 2020 WL 2085088, at *3 (E.D. Mich. Apr. 30, 2020); see also United
States v. Bowens, 938 F.3d 790, 797 (6th Cir. 2019), cert. denied sub nom. Hope v. United
States, 140 S.Ct. 814 (2020), and cert. denied, 140
the Government arguably must prove that defendants knew they were unlawful users of
a controlled substance, but not, as defendants appear to argue, that they knew unlawful
users of controlled substances were prohibited from possessing firearms under federal
law); in accord Cook, 970 F.3d 866 at 880 (citing Maez, 960 F.3d at 949).
While, the Seventh Circuit has acknowledged that this knowledge requirement is
less straightforward in states where marijuana use is legal as a matter of state but not
federal law, see Cook, 970 F.3d at 882-83 (7th Cir. 2020), Pe

ative statements

in his plea colloquy show that he was aware he was an unlawful user of marijuana in
October 2015. Regardless, the evidence of record demonstrates that there is no doubt that
Petitioner had knowledge of his felon status at the time of his conviction (See Doc. 33-1;
Doc. 33-2). Thus, if the Rehaif
ample proof existed to show that he knew he was in the category of persons who were
prohibited from possessing a firearm at the time of his offense. See Rehaif, 139 S. Ct. at
2200; Maez, 960 F.3d at 967 (evidence including defend

previous felony

conviction permitted jury to infer beyond a reasonable doubt that defendant knew he
was a felon); Benson v. Marske, No. 19-cv-644, 2019 WL 6683508, at *2 (W.D. Wisc. Dec. 6,
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2019) (habeas petitioner did not deny he knew he had been convicted of a felony at the
time he possessed a firearm and in fact stipulated he was a felon).
Therefore, Petitioner cannot show that his conviction or sentence for being a felon
in possession of a firearm repr
habeas relief in light of the Rehaif opinion, and this claim must fail.
B.

Mathis Claim

Petitioner also argues that his Iowa third degree burglary charge does not
constitute a crime of violence after Mathis, and thus was improperly used to enhance his
sentence guideline range from 84-105 to

onment (Doc. 1).

However, as the Court noted in its August 18, 2020 Order:
Some errors can be raised on direct appeal, but not in a collateral attack
pursuant to Sections 2255 or 2241. A claim that a defendant was erroneously
treated as a career offender under the advisory Sentencing Guidelines is
Hawkins
that the error in calculating the Guidelines range did not constitute a
miscarriage of justice for Section 2255 purposes given the advisory nature
was appropriate and that it did not exceed the statutory maximum.” United
States v. Coleman
see also Hawkins v.
United States, 706 F.3d 820 (7th Cir. 2013), supplemented on denial of
rehearing, 724 F.3d 915 (7th Cir. 2013). More recently, the Seventh Circuit
reiterated that the Sentencing Guidelines have been advisory ever since the
Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). Perry v.
United States, 877 F.3d 751 (7th Cir. 2017).
Thigpen was sentenced in 2016, well after the decision in Booker. He
received the statutory maximum range of 10 years. 18 U.S.C. §924(a)(2).
Further, Thigpen fails to demonstrate that he relies on a decision that he
could not have invoked in a Section 2255 motion. In fact, the issue of
Mathis was raised on both his direct appeal and Section 2255 motion. Thus,
he does not meet the qualifications for bringing a Section 2241 claim.
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ters this initial analysis, and the Court finds
Mathis claim must also fail.
Conclusion

Motion to Withdraw (Doc. 18) is GRANTED. The Clerk of Court is DIRECTED to
terminate the appointment of the Office of the Federal Public Defender and Attorney
Skaggs.
DISMISSED with prejudice.
The Clerk is DIRECTED to close this case and enter judgment accordingly.
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); see
also 28 U.S.C. § 2253. If Petitioner wishes to appeal, he may file a notice of appeal with
this Court within 30 days of the entry of judgment. Fed. R. App. P. 4.
SO ORDERED.
Dated: July 14, 2021

______________________________
DAVID W. DUGAN
United States District Judge

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