Worman v. Kallis

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

JOHN WORMAN, )

)

Petitioner, )

)

v. ) Case Nos 18-cv-1144-JES

)

)

STEVE KALLIS, Warden )

)

Respondent. )

ORDER AND OPINION

Now before the Court is Petitioner John Worman’s Amended Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2241 (Doc. 6).1 Worman is currently incarcerated in the Pekin Federal

Correctional Institution in Pekin, Illinois. He seeks to collaterally challenge his sentence in light

of the Supreme Court’s decision in Dean v. United States, 137 S.Ct. 1170 (2017). For the

reasons set forth below, Worman’s Amended Petition (Doc. 6) is DENIED.

BACKGROUND

Following a jury trial in the District Court for the Northern District of Iowa, Worman was

convicted of mailing non-mailable matter in violation of 18 U.S.C. § 1716 (Count 1); possession

of a destructive device in violation of 26 U.S.C. § 5861(d) (Count 2); transportation of a

destructive device in violation of 18 U.S.C. § 844(d) (Count 3); possession and using a

destructive device in furtherance of a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(b)(ii) (Count 4). See United States v. Worman, Case. No. 08-cr-3012-1 (N.D. Iowa).

Pursuant to § 924(c)(1)(B)(ii), Petitioner was subject to a mandatory minimum sentence of 360

1 Citations to documents filed in this case are styled as “Doc. __.”

months’ imprisonment on Count 4 that must be served consecutively to any sentence imposed for

the other counts of conviction. The district court initially sentenced Worman to one month

imprisonment on each of Counts 1, 2, and 3, to be served concurrently, as well as the mandatory

360 months’ imprisonment on Count 4, to be served consecutively, for a total of 361 months’

imprisonment. See United States v. Worman, 622 F.3d 969, 974 (8th Cir. 2010).

Worman appealed his conviction on several grounds, all of which were affirmed by the

Eighth Circuit. Id. at 974-78. The United States cross-appealed, challenging the sentence of one

month imprisonment for the first three counts. Id. at 978. The Eighth Circuit remanded the case

for resentencing, finding that the district court had properly calculated the advisory guidelines

range of 168 to 210 months for the first three counts, but had improperly relied on the severity of

the mandatory consecutive minimum sentence on Count 4 when varying downward by 167

months. Id.

In December 2011, the district court resentenced Worman to concurrent sentences of 168

months’ imprisonment on Counts 1, 2, and 3, and a mandatory consecutive sentence of 360

months’ imprisonment on Count 4, for a total sentence of 528 months’ imprisonment. See

Worman, No. CR 08-3012-MWB, Amended Judgment, d/e 136; Resp. App. 10-15 (Doc. 11-1).

Worman did not appeal the amended judgment.

In June 2016, Worman filed his initial Motion under 28 U.S.C. § 2255, seeking to

challenge his conviction on Count 4 under 18 U.S.C. § 924(c) in light of the United States

Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2016). The district court

found Johnson’s holding that the residual clause of 18 U.S.C. § 924(e) was unconstitutionally

vague did not apply to Worman’s conviction under § 924(c). Accordingly, the district court

dismissed the Motion as untimely. Worman v. United States, No. 16-cv-3077 (N.D. Iowa Feb.

27, 2017).

In January 2018, Worman requested permission from the Eighth Circuit to file a second

or subsequent motion for § 2255 relief based on Dean v. United States, 137 S.Ct. 1170 (2017).

See Worman v. United States, No. 18-cv-1068 (8th Cir.). His request was denied on March 28,

2018. Id.

Worman filed this Amended Petition (Doc. 6) in April 2018. He is seeking to vacate his

sentence in light of Dean v. United States, 137 S.Ct. 1170 (2017), which held that a sentencing

court can consider the mandatory minimum sentence under 18 U.S.C. § 924(c) when choosing a

just sentence for the predicate count. Id. at 1177. Respondent filed his response (Doc. 11) in

July 2018, and Worman filed a reply in August 2018. This Order follows.

LEGAL STANDARD

Generally, federal prisoners who seek to collaterally attack their conviction or sentence

must proceed by way of motion under 28 U.S.C. § 2255, the so-called “federal prisoner’s

substitute for habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368, at *1 (7th Cir.

Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). The exception to

this rule is found in § 2255 itself: a federal prisoner may petition under § 2241 if the remedy

under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C.

§ 2255(e). Under the “escape hatch” of § 2255(e), “[a] federal prisoner should be permitted to

seek habeas corpus 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). Thus, the Seventh Circuit has

held that “alternative relief under § 2241 is available only in limited circumstances: specifically,

only upon showing “(1) that he relies on ‘not a constitutional case, but a statutory-interpretation

case, so [that he] could not have invoked it by means of a second or successive section 2255

motion,’ (2) that the new rule applies retroactively to cases on collateral review and could not

have been invoked in his earlier proceeding, and (3) that the error is ‘grave enough ... to be

deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding,’ such as one

resulting in ‘a conviction for a crime of which he was innocent.’” Montana v. Cross, 829 F.3d

775, 783 (7th Cir. 2016), cert. denied sub nom. Montana v. Werlich, 137 S. Ct. 1813, 197 L. Ed.

2d 758 (2017) (citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)).

DISCUSSION

Worman’s Amended Petition relies on Dean v. United States, 137 S.Ct. 1170 (2017).

Dean held that a sentencing court can consider the mandatory minimum sentence under 18

U.S.C. § 924(c) when choosing a just sentence for the predicate count. In crafting Worman’s

initial sentence, the sentencing court did consider the mandatory minimum sentence under

§ 924(c), and determined that a just sentence for the predicate counts would be only one month,

for a total imprisonment sentence of 361 months. Pre-Dean, however, the Eighth Circuit had

reached the opposite conclusion—that a sentencing court could not consider the minimum

sentence under § 924(c)—and found that the district court had abused its discretion. On remand,

Worman was resentenced to an additional 167 months’ imprisonment due to what we now know

was the Eighth Circuit’s erroneous interpretation of the district court’s sentencing discretion.

However, that an error was made, does not mean the error is corrigible in collateral review.

Here, Worman’s claim cannot proceed under the § 2255(e) savings clause because Dean is not

retroactive.

A new rule is only retroactive to cases on collateral review in limited circumstances.

Substantive rules, rules that “alter[ ] the range of conduct or the class of persons that the law

punishes” or “narrow the scope of a criminal statute by interpreting its terms,” generally apply

retroactively because they “necessarily carry a significant risk that a defendant stands convicted

of ‘an act that the law does not make criminal’ or faces a punishment that the law cannot impose

upon him.” Schriro v. Summerlin, 542 U.S. 348, 352-53, 124 S. Ct. 2519, 2522–23 (2004)

(citing Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604 (1990); Davis v. United

States, 417 U.S. 333, 346, 94 S.Ct. 2298 (1974)). On the other hand, “rules that regulate only the

manner of determining the defendant’s culpability are procedural” and generally do not apply

retroactively, unless they are “watershed rules of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding.” Id. at 352-53 (citing Teague v. Lane, 489

U.S. 288, 311, 109 S.Ct. 1060 (1989)).

Dean is not a substantive rule. Dean does not leave Worman convicted of an act that the

law does not make criminal, nor is Worman facing a punishment that the law cannot impose on

him. Dean does not narrow the scope of the criminal statute, but rather clarifies the amount of

discretion a district court judge can exercise when crafting a sentence. Accordingly, this Court

agrees with the other courts that have reached this issue and finds that Dean is not retroactive.

See, e.g. Gunn v. United States, No. 18-CV-1114, 2018 WL 3078741, at *6 (C.D. Ill. June 21,

2018) (finding Dean is not retroactive as “Dean does not compel courts to do anything”);

Tomkins v. United States, No. 16-CV-7073, 2018 WL 1911805, at *19–20 (N.D. Ill. Apr. 23,

2018) (finding Dean was not retroactive on collateral review, and collecting “a couple dozen

cases” that had addressed the issue all holding that Dean was not retroactive); Reed v. United

States, 2018 WL 453745, at *2 (N.D. Ill. Jan. 16, 2018) (finding that Dean does not apply

retroactively to case on collateral review); United States v. Dawson, 300 F.Supp.3d 1207, 1214

(D. Or. 2018) (concluding that Dean does not apply retroactively because the case “was about a

sentencing judge’s discretion, which is a procedural concern.”).

In reply, Worman argues that this result cannot be reconciled with the analysis in In re

Davenport, 147 F.3d 605 (7th Cir. 1998). In Davenport, petitioner Nichols argued that he was

entitled to relief in light of Bailey v. United States, 516 U.S. 137 (1995), which held that use of a

firearm under § 924(c) did not include mere possession. Davenport, 147 F.3d at 610. Bailey did

not overrule any previous Supreme Court precedent, but was contrary to the law of the Seventh

Circuit at the time of Nichols’ conviction, direct appeal, and initial § 2255 Motion. Id. Worman

argues that Davenport “did not view the Bailey claim as a retroactivity question.” Reply at 5

(Doc. 16-1). Worman misreads Davenport. The Supreme Court’s decision in Bousley v. United

States, 523 U.S. 614, 620, 118 S. Ct. 1604, 1610 (1998), had already held that Bailey was

applicable retroactively. Davenport’s reasoning expressly relied on the fact that “Nichols never

had a reasonable chance to correct an error that is corrigible retroactively.” Id. at 611 (emphasis

added).

Davenport stated that “[Teague] is inapplicable to the situation in which this Court

decides the meaning of a criminal statute enacted by Congress.” Id. at 611 (quoting Bousley, 523

U.S. at 620). However, this does not mean that all statutory decisions apply retroactively. On

the contrary, Bousley’s holding that Bailey was retroactive was premised on its conclusion that

“decisions of [the Supreme] Court holding that a substantive federal criminal statute does not

reach certain conduct, like decisions placing conduct ‘beyond the power of the criminal law-

making authority to proscribe,’ necessarily carry a significant risk that a defendant stands

convicted of ‘an act that the law does not make criminal.’” Bousley, 523 U.S. at 620-21 (quoting

Teague, 489 U.S. at 311, Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298 (1974)).

Bailey, by limiting the scope of what conduct was criminal under § 924(c), was such a decision.

Dean, which only clarified a judge’s discretion when choosing a sentence within the statutory

range, was not such a decision. Accordingly, the Court finds that Worman’s claim cannot

proceed under the § 2255(e) savings clause.

CONCLUSION

For the reasons set forth above, Petitioner John Worman’s Amended Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2241 (Doc. 6) is DISMISSED WITH PREJUDICE pursuant to

28 U.S.C. § 2255(e).

This matter is now CLOSED. Member Case No. 18-cv-1175-JES is also CLOSED.

Signed on this 2nd day of May, 2019.

s/ James E. Shadid

James E. Shadid

United States District Judge