Dumas, Anthony v. United States of America

Filing 9

Transmission of Notice of Appeal, Docketing Statement, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 6 Notice of Appeal. (Attachments: # 1 Docketing Statement, # 2 Order, # 3 Judgment, # 4 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ANTHONY C. DUMAS,
OPINION AND ORDER
Petitioner,
17-cv-480-bbc
v.
UNITED STATES OF AMERICA
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Federal prisoner Anthony C. Dumas has filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241, challenging a 2008 sentence enhancement he received under
U.S.S.G. § 4B1.1 for being a “career offender,” a status that applies under certain
circumstances to a defendant with at least two prior convictions for a “crime of violence or
a controlled substance offense.” Petitioner was found to be a career offender because he had
four prior Rock County, Wisconsin felony convictions: Case Nos. 92CR2077 (armed
robbery), 98CF1506 (possession with intent–cocaine), 01CF3517 (possession with
intent–cocaine) and 05CF972 (possession with intent–cocaine). Relying on United States
v. Mathis, 136 S. Ct. 2243 (2016), petitioner contends that none of these prior convictions
qualify as crimes of violence or controlled substance offenses for purposes of the career
offender guideline and that he could have received a significantly lower sentence without the
career offender enhancement. In Mathis, the Supreme Court held that a prior conviction

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counts as a predicate crime under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1),
only “if its elements are the same as, or narrower than, those of the generic offense.”
Petitioner’s claims are foreclosed by circuit precedent. In Hawkins v. United States,
724 F.3d 915, 916 (7th Cir. 2013), the court of appeals reaffirmed its previous holding in
Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), that “an error in calculating a
defendant's guidelines sentencing range does not justify post conviction relief unless the
defendant [was] sentenced in the pre-Booker era, when the guidelines were mandatory rather
than merely advisory.” See also United States v. Coleman, 763 F.3d 706, 708–09 (7th Cir.
2014) (recognizing that Hawkins is “the law of this circuit”). In this case, petitioner is
challenging the sentencing court’s application of the sentencing guidelines, but he was
sentenced in 2008, three years after the Supreme Court held that the guidelines are advisory
in United States v. Booker, 543 U.S. 220 (2005). Thus, Hawkins applies and petitioner
cannot rely on Mathis or any other change in the law to challenge his status as a career
offender in a post conviction proceeding.
Although Hawkins involved a motion under 28 U.S.C. § 2255 rather than a petition
under 28 U.S.C. § 2241, I see no basis for distinguishing Hawkins on that ground. As noted
above, the court of appeal’s ruling is not limited to § 2255 motions, but applies to all
“postconviction relief.” Further, the court reasoned in Hawkins that a prisoner could not
challenge a sentencing guideline error in a § 2255 motion because such an error was not a
“miscarriage of justice” in light of the fact that the guidelines do not affect the statutory
maximum, so the sentencing court would be entitled to impose the same sentence even if the

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case were remanded. Hawkins, 706 F.3d at 825. Because a petitioner seeking relief under
§ 2241 must also show that denying relief would result in a “miscarriage of justice,” e.g.,
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012), the reasoning in Hawkins applies equally
to a § 2241 petition.
Petitioner cites Dawkins v. United States, 829 F.3d 549 (7th Cir. 2016), in which
a prisoner tried to bring a successive § 2255 motion to challenge his status as a career
offender, relying on the Supreme Court’s decision in Mathis. The court of appeals declined
to authorize a successive motion on the ground that “only new rules of constitutional law,
made retroactive by the Supreme Court, can provide a basis for authorization.” Dawkins,
829 F.3d at 551. Because Mathis did not announce a new rule of constitutional law, the
prisoner could not rely on that decision to bring a successive motion under § 2255. The
court then stated that “[a]n independent claim based on Mathis must be brought, if at all,
in a petition under 28 U.S.C. § 2241.” Id. However, the court of appeals did not address
the effect that Hawkins could have on the prisoner’s claim. Thus, although Dawkins could
be interpreted as opening the door to a claim like petitioner’s, I do not believe that it is
instructive. The court did not purport to overrule Hawkins or undermine its holding.
Because Hawkins is directly on point, I conclude that it is controlling and requires dismissal
of this petition.
I acknowledge that in recent decisions, some district courts have allowed claims like
petitioner’s to proceed past the screening stage. E.g., McCoy v. True, 2017 WL 3704380,
*3 (S.D. Ill. Aug. 28, 2017); Stewart v. Werlich, 2017 WL 1348001, at *4 (S.D. Ill. April

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5, 2017).

However, I do not find those decisions persuasive because they do not

acknowledge Hawkins.
Under Rule 11 of the Rules Governing Section 2254 Cases (which can be applied to
cases under § 2241 as well), the court must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. The question is whether “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
and citations omitted). Because Dawkins creates some ambiguity, there is room for debate
about how the court of appeals might resolve petitioner’s claim. Accordingly, I will issue
petitioner a certificate of appealability.

ORDER
IT IS ORDERED that
1. Petitioner Anthony C. Dumas’s petition for a writ of certiorari under 28 U.S.C.
§ 2241 is DENIED.
2. Petitioner is GRANTED a certificate of appealability.

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3. The clerk of court is directed to enter judgment and close this case.
Entered this 5th day of October, 2017.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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