Ladd v. Kallis

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

ALLEN LADD, )

)

Petitioner, )

)

v. ) Case No. 18-cv-1063

)

STEVE KALLIS, )

)

Respondent. )

ORDER AND OPINION

Now before the Court is Petitioner Allen Ladd’s Motion for Reconsideration Under Rule

59(e) (Doc. 16). For the reasons stated below, Ladd’s Motion is DENIED.

BACKGROUND

Ladd brought this Petition under 28 U.S.C. § 2241 challenging the validity of the

sentence imposed by the United States District Court for the Western District of Wisconsin after

being convicted of possession with intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), and unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). See

United States v. Ladd, Case No. 05-CR-042-C-01 (W.D. Wis.), aff’d, 215 F. App’x 526 (7th Cir.

2007). Ladd was subject to an enhanced statutory sentencing range of 10 years to life

imprisonment, due to the weight of the drugs involved and the district court’s finding that Ladd

had a prior conviction for a felony drug offense. See 21 U.S.C. § 841(b)(1)(B)(iii) (West 2006)

(“If any person commits such a violation after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of imprisonment which may not be less

than 10 years and not more than life imprisonment.”). Specifically, the sentencing court found

he had two predicate offenses that qualified as felony drug offenses: (1) his 1990 conviction for

Manufacture/Delivery of Cannabis in violation of 720 ILCS 550/5 (formerly Ill. Rev. Stat. 56 ½,

§ 705(d)) in Cook County, Illinois, Case No. 90-CR-0094602, and (2) his 1995 conviction for

Manufacture/Delivery of 1-15 Grams of Cocaine in Cook County, Illinois in violation of 720

ILCS 570/401, Case No. 94-CR-2973201. See Doc. 10-1 at 3.

Ladd argued in his Petition that, in light of the Supreme Court’s decision in Mathis v.

United States, 136 S. Ct. 2243 (2016), his 1995 conviction did not qualify as a felony drug

offense for the purposes of the sentencing enhancement under 21 U.S.C. § 841(b)(1)(B), as

defined in 21 U.S.C. § 802(44). Accordingly, he argued he was entitled to a new sentence

without the sentencing enhancement.

This Court dismissed Ladd’s Petition on April 12, 2019, as an abuse of the writ because

he had already raised Mathis-based claims in a prior petition. See Doc. 14 at 5; see also, Ladd v.

Krueger, Case No. 16-cv-1489 (C.D. Ill. Dec. 19, 2017). Further, the Court found that Ladd’s

Petition could not otherwise proceed under the 28 U.S.C. § 2255(e) savings clause, because he

had not shown his claim was previously unavailable to him and he had not shown that there had

been a miscarriage of justice. Id. at 6-9. Ladd timely filed this Motion for Reconsideration on

May 1, 2019.

DISCUSSION

“Courts may grant Rule 59(e) motions to alter or amend the judgment if the movant

presents newly discovered evidence that was not available at the time of [the decision] or if the

movant points to evidence in the record that clearly establishes a manifest error of law or fact.”

Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012) (internal citation omitted).

This enables courts to correct their own errors an avoid unnecessary appeals. Id. However, Rule

59(e) motions should not be used “to ‘rehash’ previously rejected arguments.” Vesely v. Armslist

LLC, 762 F.3d 661, 666 (7th Cir. 2014).

Here, Ladd first alleges the Court erred in dismissing his Petition as an abuse of the writ

because the law changed since the filing of his first Mathis-based § 2241 Petition. Ladd points to

the Seventh Circuit case of United States v. Elder, 900 F.3d 491 (7th Cir. 2018), which was

decided on August 15, 2018. However, Ladd’s Petition was filed on February 14, 2018, months

before the Elder decision was announced. Ladd’s Petition obviously did not purport to rely on

Elder, which had not yet been announced, but only upon Mathis. Moreover, Elder does not

represent a change in law that would allow him to proceed under the § 2255(e) savings clause:

Elder is a Seventh Circuit case, as opposed to a Supreme Court case, and, as Ladd filed his claim

prior to Elder, there could be no argument that his claim was not available prior to Elder. See

Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016) (holding that in order to invoke the savings

clause of 2255(e), a petitioner must show that ““(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.’”)

((citing Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). Thus, Ladd has not shown any error

of law or fact regarding the Court’s dismissal of his Petition for abuse of the writ.

Ladd next argues that the Court erred in finding his claim was not previously foreclosed.

As he did in his reply brief, Ladd again argues that it would have been futile to raise his Mathis

type argument in light of United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1996). This

Court thoroughly addressed Shannon in its original order, and found that “the holding in

Shannon did not foreclose any Mathis-type arguments regarding when a statute is divisible.” See

Doc. 14 at 6-7. Ladd now points to United States v. Brooks, 278 Fed. App’x 688 (7th Cir. 2008),

for additional support. In Brooks, the defendant argued “that the district court was required to

examine [his predicate conviction’s] plea colloquy to determine whether his conviction involved

a controlled substance.” Id. at 691. The Seventh Circuit, relying on Shannon, rejected this

argument because “a sentencing court cannot look behind the statute, judgment, and charging

document when the nature of the conviction categorically qualifies for recidivist sentencing

consideration under the guidelines.” Id. Like Shannon itself, Brooks does not relate to the

Mathis/divisibility argument Ladd sought to make in his Petition. Accordingly, the Court finds

that Ladd has not established any error of law or fact in the Court’s original order and judgment.

Moreover, the Court notes that Ladd has not addressed the Court’s final reason for

dismissing his case—that he could not show a miscarriage of justice. Even if Ladd’s 1995

Illinois conviction for manufacture/delivery of cocaine did not qualify as a felony drug offense

for the purposes of the sentencing enhancement under 21 U.S.C. § 841(b)(1)(B), as defined in 21

U.S.C. § 802(44), he still would be subject to the sentencing enhancement. This is because his

1990 Illinois conviction for manufacture/delivery of cannabis remains a felony drug offense, and

only one felony drug offense is needed for the enhancement to apply. See Doc. 14 at 7-9.

CONCLUSION

For the reasons stated above, Petitioner’s Motion for Reconsideration (Doc. 16) is

DENIED.

Signed on this 6th day of May, 2019.

s/ James E. Shadid

James E. Shadid

United States District Judge