COUNCIL v. DANIELS
Filing
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Order Denying Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Directing Entry of Final Judgment - Petitioner William H. Council seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Council asserts that he is no longer a n armed career criminal or a career offender in view of Mathis v. United States, 136 S. Ct. 2243 (2016). The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied. The dismissal of this action is with prejudice. Judgment consistent with this Order shall now issue. (See Order.) Copy to Petitioner via U.S. Mail. Signed by Judge Jane Magnus-Stinson on 10/23/2018. (DMW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
WILLIAM H. COUNCIL,
Petitioner,
v.
CHARLES DANIELS Warden,
Respondent.
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No. 2:17-cv-00470-JMS-DLP
Order Denying Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
and Directing Entry of Final Judgment
Petitioner William H. Council seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Mr. Council asserts that he is no longer an armed career criminal or a career offender in view of
Mathis v. United States, 136 S. Ct. 2243 (2016). His petition is denied.
I.
Standard
To succeed on a motion for relief under § 2241, a motion pursuant to 28 U.S.C. § 2255
must be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
Section 2255 is inadequate or ineffective if the following three requirements are met: “(1) the
petitioner must rely on a case of statutory interpretation (because invoking such a case cannot
secure authorization for a second § 2255 motion); (2) the new rule must be previously unavailable
and apply retroactively; and (3) the error asserted must be grave enough to be deemed a miscarriage
of justice, such as the conviction of an innocent defendant.” Davis v. Cross, 863 F.3d 962, 964
(7th Cir. 2017). “The petitioner bears the burden of coming forward with evidence affirmatively
showing the inadequacy or ineffectiveness of the § 2255 remedy.” Smith v. Warden, FCC
Coleman–Low, 503 Fed. Appx. 763, 765 (11th Cir. 2013) (citation omitted).
II.
Factual and Procedural Background
On September 1, 2015, Mr. Council pleaded guilty in the Western District of Missouri to
one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United
States v. Council, 2:14-cr-04039-BCW-1 (W.D. Mo.) (hereinafter, “Crim. Dkt.”), Crim. Dkt. 43;
see also United States v. Council, 860 F.3d 604, 606 (8th Cir. 2017). In exchange for concessions
made by the government, Mr. Council entered into a binding plea agreement pursuant to Fed. R.
Crim. P. 11(c)(1)(C). Crim. Dkt. 45. As part of the factual basis for the guilty plea, Mr. Council
admitted that he had previously been convicted in 1992 of felony unlawful use of a weapon and
felony distribution of a controlled substance and in 2003 of felony unlawful use of a weapon. Id.
at 2. The parties agreed that the applicable Guidelines section was §2K2.1, and that Mr. Council
was entitled to a 3-level reduction for acceptance of responsibility, pursuant to §3E1.1(b). The
parties agreed that the district court would determine Mr. Council’s applicable Sentencing
Guidelines range and would determine the appropriate sentence. Id. at 3, 6. Mr. Council further
agreed not to collaterally challenge his sentence “on any ground except claims of: (1) ineffective
assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence.” Id. at 9. An “illegal
sentence” included “a sentence imposed in excess of the statutory maximum, but does not include
less serious sentencing errors, such as a misapplication of the Sentencing Guidelines, an abuse of
discretion, or the imposition of an unreasonable sentence.” Id.
The United States Probation Office filed a presentence report in preparation for sentencing.
Dkt. 11. Using the 2015 edition of the Sentencing Guidelines, the Probation Office determined
that being a felon in possession of a firearm provided for a base offense level of 26 under U.S.S.G.
§ 2K2.1(a)(1). Id. at 7, ¶¶ 13-14. That level was increased by two under § 2K2.1(b)(3)(B) because
Mr. Council possessed a sawed-off shotgun, a destructive device. That level was increased by four
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under § 2K2.1(b)(6)(B) because Mr. Council possessed a sawed-off shotgun in connection with
another felony offense. His adjusted offense level was 32. Id. at 9, ¶ 20. The Probation Office,
however, found Mr. Council to be an armed career criminal, subject to an enhanced sentence under
18 U.S.C. § 924(e). Id. ¶ 22. As an armed career criminal, his offense level was 34 and, statutorily,
would subject him to a sentence of not less than 15 years up to life imprisonment. Id. ¶¶ 22, 83.
The convictions supporting the armed career criminal designation included Mr. Council’s 1992
Missouri convictions on three separate counts of sale of a controlled substance. Id. ¶ 39. Although
sentenced on the same date, each sale occurred on different dates: the first sale on November 12,
1990, the second sale on November 14, 1990, and the third sale on December 13, 1990. That
offense level combined with a criminal history Category VI resulted in a guidelines custody range
of 188 to 235 months’ imprisonment. Id. at 19, ¶ 84.
Amongst other objections, Mr. Council objected to the Probation Office’s finding that he
qualified as an armed career offender under § 924(e)(1). Crim. Dkt. 51; Crim. Dkt. 58 at 2-8. Mr.
Council argued that the three sales should have counted as one incident as they occurred at the
same time. Crim. Dkt. 58 at 5.
Ultimately, the sentencing court found Mr. Council’s prior drug convictions qualified as
predicate offenses under the ACCA and the Guidelines. Because the plea agreement did not
contemplate Mr. Council’s sentencing as an armed career criminal, Mr. Council was given the
opportunity to withdraw his guilty plea, but he chose to continue to plead guilty. Id. at 8. On
February 2, 2016, Mr. Council was sentenced to the statutory minimum of 180 months’
imprisonment. Crim. Dkt. 53.
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On appeal, Mr. Council challenged the district court’s motion to suppress evidence related
to his arrest and ensuing search. The Eighth Circuit affirmed the judgment. See Council, 860 F.3d
at 613. Mr. Council did not file a motion pursuant to 28 U.S.C. § 2255.
Mr. Council now files a petition under § 2241 challenging his sentence.
III.
Discussion
Citing Mathis v. United States, 136 S. Ct. 2243 (2016) 1, Mr. Council challenges his
conviction as an Armed Career Criminal, asserting that “simple” possession of a firearm under 18
U.S.C. § 922(g)(1) is a non-violent act that does not trigger the provisions of the Armed Career
Criminal Act and that his prior convictions no longer qualify as controlled substance offenses
under the U.S. Sentencing Guidelines or the Armed Career Criminal Act. See dkt. 1 at 1. The
United States filed a response in opposition. Dkt. 10. Mr. Council did not file a reply, and the
time to do so has passed.
Each of the three requirements to invoke the savings clause of § 2255(e) is discussed below.
A.
Statutory-Interpretation Case
The parties agree that Mr. Council meets the first savings clause requirement. Dkt. 10 at
8. He challenges his sentence under Mathis, which is a case of statutory interpretation. Dawkins
v. United States, 829 F.3d 549, 551 (7th Cir. 2016) (Mathis “is a case of statutory interpretation”);
United States v. Bess, 655 Fed. Appx. 518 (8th Cir. 2016) (recognizing that Mathis inquiry was
“whether the statutory alternatives were means or elements”).
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Although Mr. Council cites to United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), in his
petition, Hinkle is inapplicable as it analyzed whether a conviction under a different statute, Texas
Health & Safety Code Ann. § 481.112(a), remains a “controlled substance offense” under the
Sentencing Guidelines. Mr. Council has not explained why Hinkle is applicable here, and further
analysis of Hinkle is not necessary.
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B.
Retroactivity
The parties also agree that Mr. Council meets the second savings clause requirement. Dkt.
10 at 9.
The Seventh Circuit has determined that “substantive decisions such as Mathis
presumptively apply retroactively on collateral review.” Holt v. United States, 843 F.3d 720, 72122 (7th Cir. 2016) (internal citations omitted).
C.
Miscarriage of Justice
The final question is whether there has been a miscarriage of justice. Mr. Council
challenges his sentencing as an armed career criminal. The ACCA prescribes a 15–year mandatory
minimum sentence if a defendant is convicted of being a felon in possession of a firearm following
three prior convictions for a “violent felony” or “serious drug offense.” Mathis, 136 S. Ct. at 2248
(quoting § 924(e)(1)). This statute provides in relevant part:
(e)(1) In the case of a person who … has three previous convictions by any court
… for a violent felony or a serious drug offense, or both, committed on occasions
different from one another, such person shall be fined under this title and
imprisoned not less than fifteen years
18 U.S.C.A. § 924(e)(1). If Mr. Council is correct that he was erroneously classified as an armed
career criminal and his sentence was wrongly enhanced, he was subjected to a miscarriage of
justice because he should have faced only the felon-in-possession statute’s 10-year maximum
penalty. See Narvaez v. United States, 674 F.3d 621, 627 (7th Cir. 2011) (finding misapplication
of ACCA enhancement “... clearly constitutes a miscarriage of justice.”); Mathis, 136 S. Ct. at
2248; § 924(a)(2); see also Welch v. United States, 604 F.3d 408, 412-13 (7th Cir. 2010)
(recognizing that a sentencing error is cognizable on collateral review “where a change in law
reduces the defendant’s statutory maximum sentence below the imposed sentence”). In other
words, but for the ACCA conviction, Mr. Council’s sentence could be no more than 120 months.
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The respondent argues that there is no miscarriage of justice in Mr. Council’s case because
he remains an armed career criminal under the ACCA and a career criminal under U.S.S.G.
§ 4B1.1. Dkt. 10. Mr. Council disagrees, raising two separate claims. Each is discussed below.
1.
Possession of a Firearm as a “Non-Violent” Act
Mr. Council first argues that “simple” possession of a firearm under 18 U.S.C. § 922(g)(1)
is a non-violent act that does not trigger the provisions of the Armed Career Criminal Act. Mr.
Council is mistaken. 18 U.S.C. § 924(e)(1) provides that:
In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent felony or
a serious drug offense, or both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not less than fifteen years.
Id. There is no requirement that that the underlying § 922(g) conviction be a “violent” act. Thus,
it is irrelevant whether possession of a firearm under § 922(g)(1) is “violent” or “non-violent.”
Mr. Council’s claim is without merit.
2.
Prior Drug Convictions
Mr. Council also argues his prior drug convictions no longer qualify as controlled
substance offenses under the U.S. Sentencing Guidelines or the Armed Career Criminal Act. At
the time of Mr. Council’s sentencing, the ACCA defined “serious drug offense” as any “offense
under State law, involving manufacturing, distributing, or possessing with intent to manufacture
or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years
or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Under the categorical approach, in “determining whether a given state conviction qualifies
as a predicate offense,” a court “‘focus[es] solely on whether the elements of the crime of
conviction sufficiently match the elements of [the crime referenced in the federal statute], while
ignoring the particular facts of the case.’” United States v. Elder, 900 F.3d 491, 498 (citing Mathis,
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136 S. Ct. at 2248). “A state crime may qualify as a predicate conviction only if the elements of
the state crime mirror, or are narrower than, the elements of the generic crime.” Id. at 501 (internal
quotations and citations omitted.). “If [a] state law defines the offense more broadly than the
[federal statute], the prior conviction doesn’t qualify as a [predicate offense], even if the
defendant’s conduct satisfies all of the elements of the [federal] offense.” Id. (internal quotations
and citations omitted).
“The comparison of elements that the categorical approach requires is straightforward
when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime.” Mathis,
136 S. Ct. at 2248. The court “lines up that crime’s elements alongside those of the generic offense
and sees if they match.” Id.
If, however, a statute is “divisible,” a modified categorical approach applies. Elder, 900
F.3d at 502. A statute is “divisible” when it “sets out one or more elements of the offense in the
alternative—for example, stating that burglary involves entry into a building or an automobile.”
Descamps v. United States, 570 U.S. 254, 257 (2013). As the Supreme Court explained in
Descamps,
[i]f one alternative (say, a building) matches an element in the generic offense, but
the other (say, an automobile) does not, the modified categorical approach permits
sentencing courts to consult a limited class of documents, such as indictments and
jury instructions, to determine which alternative formed the basis of the defendant’s
prior conviction.
Id. Shepard v. United States, 544 U.S. 13, 20 (2005), instructs that a district court is limited to
examining “the statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding made by the trial judge to which the defendant assented,”
or “to some comparable judicial record of this information.” See United States v. Black, 636 F.3d
893, 898 (7th Cir. 2011).
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The Supreme Court in Mathis further instructs that there is a difference between alternative
elements of an offense and alternative means of satisfying a single element. Mathis, 136 S. Ct. at
2250. Elements must be agreed upon by a jury. Id. at 2256. When a jury is not required to agree
on the way that a particular requirement of an offense is met, the way of satisfying that requirement
is a means of committing an offense, not an element of the offense. Id. “In determining whether
a statute is divisible, [the court] look[s] first to whether there is ‘a decision by the state supreme
court authoritatively construing the relevant statute’ and establishing which facts are elements and
which are means.” Elder, 900 F.3d at 502 (internal quotations and citations omitted). “Absent a
controlling state-court decision, the text and structure of the statute itself may provide the answer.”
Id. “Finally, [f]ailing those authoritative sources of state law, sentencing courts may look to the
record of a prior conviction itself for the limited purpose of distinguishing between elements and
means.” Id. at 502-03.
In 1992, Mr. Council was convicted of three separate counts of sale of a controlled
substance, in violation of Mo. Code § 195.211, in St. Charles County, Missouri, Case No. CR1911617FX. Mr. Council argues that these prior convictions should not qualify as predicate offenses
because the “deliver” and “sale” terms used in the Missouri drug statute criminalize a broader
range of activities than is enumerated under the Sentencing Guidelines and Armed Career Criminal
Act.
Pre-Mathis, the Eighth Circuit held that convictions under Missouri law for the distribution
of controlled substances under Mo. Code § 195.211 are “serious drug offenses” for the purposes
of the ACCA. See United States v. Mason, 440 F.3d 1056 (8th Cir. 2006). The 1992 version of
Mo. Code § 195.211 states that:
Except as authorized by sections 195.005 to 195.425, it is unlawful for any person
to distribute, deliver, manufacture, produce or attempt to distribute, deliver,
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manufacture or produce a controlled substance or to possess with intent to
distribute, deliver, manufacture, or produce a controlled substance.
See Mo. Code § 195.211(1) (1992). Deliver is defined as “the actual, constructive, or attempted
transfer from one person to another of drug paraphernalia or of a controlled substance, or an
imitation controlled substance, whether or not there is an agency relationship, and includes a sale.”
Id. § 195.010(10) (1992).
The ACCA defines “serious drug offense” as any “offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) for which
a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.
§ 924(e)(2)(A)(ii). 21 U.S.C. § 802(8) defines deliver as “actual, constructive, or attempted
transfer of a controlled substance or a listed chemical, whether or not there exists an agency
relationship.”
The language in the Missouri statutes does not sweep more broadly than the ACCA when
criminalizing the distribution or sale of a controlled substance and Mathis does not change the
Eighth Circuit’s analysis that convictions under Missouri law for the distribution of controlled
substances under Mo. Code § 195.211 are “serious drug offenses” for the purposes of the ACCA.
Accordingly, Mr. Council’s three Missouri convictions for “sale of a controlled substance” remain
“serious drug offenses” and predicate offenses under the ACCA. Thus, Mr. Council remains an
armed career criminal under the ACCA.
In short, Mr. Council cannot demonstrate a miscarriage of justice so as to permit a § 2241
petition. Rose vs. Hodges, 423 U.S. 19, 21 (1975) (“A necessary predicate for the granting of
federal habeas relief [to a petitioner] is a determination by the federal court that [his or her] custody
violates the Constitution, laws, or treaties of the United States.”).
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IV.
Conclusion
The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied. The
dismissal of this action is with prejudice. Prevatte v. Merlak, 865 F.3d 894, 901 (7th Cir. 2017)
(“petition should be dismissed with prejudice under 28 U.S.C. § 2255(e)”).
Judgment consistent with this Order shall now issue.
IT IS SO ORDERED.
Date: 10/23/2018
Distribution:
WILLIAM H. COUNCIL
26996-045
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
Brian L. Reitz
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
brian.reitz@usdoj.gov
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
bob.wood@usdoj.gov
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