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Civil No. 17-cv-1136-DRH-CJP (S.D. Ill. Jul. 26, 2018)

Civil No. 17-cv-1136-DRH-CJP


BERRY WILLIAMS, Petitioner, v. T. G. WERLICH, Respondent.


Petitioner Berry Williams filed a petition for writ of habeas corpus under 28 U.S.C. §2241 (Doc. 1) challenging the enhancement of his sentence as a career offender under U.S.S.G. § 4B1.1. He purports to rely on Mathis v. United States, 136 S. Ct. 2243 (2016). Respondent filed a Motion to Dismiss, Doc. 7. Petitioner then filed an Amended Petition at Doc. 16 which set forth the same claim as the original petition. In response to the amended petition, (Doc. 17), respondent renewed his Motion to Dismiss. Petitioner responded to the motion at Doc. 19. His response is styled as a "Motion to Deny Respondent's Motion to Dismiss."

For the reasons discussed below, the undersigned RECOMMENDS that the District Judge GRANT respondent's Motion to Dismiss.

Relevant Facts and Procedural History

Pursuant to a written plea agreement, Williams pleaded guilty to one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) in the Eastern District of Missouri. United States v. Williams, Case No. 10-cr- 115-CEJ. The potential sentence was up to 20 years imprisonment. 21 U.S.C. § 841(b)(1)(C). In May 2011, Williams was sentenced to 151 months imprisonment. See, Judgment, Case No. 10-cr-00115-CEJ, Doc. 60.

In 2016, through counsel, petitioner filed a motion under 28 U.S.C. § 2255 in the Eastern District of Missouri challenging his classification as a career offender under Johnson v. United States, 135 S. Ct. 2551 (2015). Williams v. United States, Case No. 16-cv-962-CEJ. The motion was stayed pending a decision from the Supreme Court in Beckles v. United States. The Supreme Court held in that case that the holding in Johnson does not apply to the residual clause of the career offender enhancement of the Sentencing Guidelines, U.S.S.G. § 4B1.1. Beckles v. United States, 137 S. Ct. 886 (2017).

Grounds for Habeas Relief

Ostensibly relying on Mathis v. United States, 136 S. Ct. 2243 (2016), petitioner argues that his prior Missouri convictions for second degree assault of a law enforcement officer and delivery of a controlled substance no longer qualify as predicate crimes for purposes of the career offender enhancement under U.S.S.G. § 4B1.1.

Grounds for Dismissal

Respondent argues that the petition should be dismissed because petitioner cannot bring his claim in a § 2241 petition. Respondent argues that a sentence calculated under the advisory Sentencing Guidelines does not constitute a miscarriage of justice.


Respondent is correct that petitioner cannot bring a Mathis claim in a § 2241 petition.

There are some errors that can be raised on direct appeal but not in a collateral attack such as a § 2255 motion or a § 2241 petition. A claim that a defendant was erroneously treated as a career offender under the advisory Sentencing Guidelines is one such claim. Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), supplemented on denial of rehearing, 724 F.3d 915 (7th Cir. 2013). See also, United States v. Coleman, 763 F.3d 706, 708-09 (7th Cir. 2014)("[W]e held in Hawkins that the error in calculating the Guidelines range did not constitute a miscarriage of justice for § 2255 purposes given the advisory nature of the Guidelines and the district court's determination that the sentence was appropriate and that it did not exceed the statutory maximum.")

The Sentencing Guidelines have been advisory and not mandatory ever since the Supreme Court decided United States v. Booker, 125 S.Ct. 738 (2005) . Perry v. United States, 877 F.3d 751, 754 (7th Cir. 2017). Williams was sentenced in 2011, long after the Supreme Court declared the Sentencing Guidelines to be merely advisory.

In his response, styled as a Motion to Deny Respondent's Motion to Dismiss, Doc. 19, petitioner tries to distinguish Hawkins by arguing that, unlike the petitioner in Hawkins, he is raising a constitutional challenge to his sentence. He argues that his sentence violates his due process right to be sentenced based on accurate information. According to petitioner, his sentence was based on inaccurate information because his prior convictions no longer qualify as predicate crimes for the career offender enhancement.

Petitioner's attempt to distinguish Hawkins should be rejected. A defendant does have a due process right to be sentenced based on accurate information. U.S. ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984), citing United States v. Tucker, 92 S.Ct. 589, 591 (1972) and Townsend v. Burke, 68 S.Ct. 1252 (1948). However, petitioner misunderstands the scope of that right.

Due process is violated by reliance on factually incorrect information at sentencing. In Townsend, the sentencing court mistakenly thought that the defendant had been convicted on several charges when he in fact had been acquitted or the charges had been dropped. Townsend, 68 S. Ct. at 1255. In Tucker, the sentencing court was unaware that two of the defendant's prior convictions were invalid because they had been obtained in violation of his right to counsel. Tucker, 92 S. Ct. at 592. In Welch, the sentencing court thought that the defendant had been previously convicted of armed robbery, but the prior conviction was only for robbery. Welch, 738 F.2d at 865. See also, United States v. Melendez, 819 F.3d 1006, 1012 (7th Cir. 2016) (drug quantity); United States v. Jones, 454 F.3d 642, 652 (7th Cir. 2006) (court considered prior conviction that had been overturned);

Here, the allegedly inaccurate information is not the fact of the prior convictions; it is the conclusion that the prior convictions qualified as predicate crimes for the career offender enhancement. The question of whether a prior crime qualifies as predicate crime is a legal question, not a factual one. Petitioner cites no case wherein an erroneous determination of a legal question was held to be the kind of "inaccurate information" which violated due process. This Court's independent research has not identified such a case.

In short, there is no meaningful way to distinguish Hawkins from this case. The issue in Hawkins was the same as the issue raised by petitioner here: the use of a prior conviction that would allegedly no longer qualify as a predicate conviction for the career offender enhancement under current law. In its supplemental opinion on denial of rehearing in Hawkins, the Court succinctly summarized its holding: "an error in calculating a defendant's guidelines sentencing range does not justify postconviction relief unless the defendant had, as in Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), been sentenced in the pre-Booker era, when the guidelines were mandatory rather than merely advisory." Hawkins, 724 F.3d at 916. Under the binding precedent of Hawkins, the petition should be dismissed.


For the foregoing reasons, the undersigned RECOMMENDS that the District Judge GRANT the Motion to Dismiss (Doc. 7), renewed in Doc. 17, and dismiss this action with prejudice.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed findings and recommendations set forth above. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).


DATE: July 26, 2018.

s/ Clifford J. Proud



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