Fleming v. Entzel

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVSION

ROBERT E. FLEMING, )

)

Petitioner, )

)

v. ) No. 20-cv-1059

)

FREDERICK ENTZEL, Warden, )

)

Respondent. )

ORDER AND OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on Petitioner Robert E.

Fleming’s Petition for Writ of Habeas Corpus under 28 U.S.C.

§ 2241 (Doc. 1) and his Motion to Amend (Doc. 4). Fleming argues

that he should not have been sentenced as a career offender under

the advisory sentencing guidelines in light of Mathis v. United

States, 136 S. Ct. 2243 (2016). Petitioner’s Motion to Amend (Doc.

4) is GRANTED to the extent that the Court considered the

arguments made in reaching the Court’s decision. However,

because Fleming is not entitled to proceed under 28 U.S.C.

§ 2255(e), the § 2241 Petition is DISMISSED.

I. BACKGROUND

In September 2008, in the Northern District of Iowa, Fleming

pleaded guilty to possession with the intent to distribute

approximately 46 grams of cocaine base within 1,000 feet of a

school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), and 860. (Doc.

6 at App. 1). Because he had a prior felony drug conviction, he

faced a mandatory minimum sentence of ten years’ imprisonment

and a maximum sentence of life. (Doc. 6 at App. 3-8); see 21

U.S.C. § 841(b)(1)(B). Without the finding that he had a prior

felony drug conviction, he would have faced a mandatory minimum

sentence of five years and a maximum of forty years imprisonment.

Id.

The United States Probation Office prepared a presentence

investigation report prior to sentencing. The PSR found that

Fleming’s relevant conduct, specific offense characteristics, role in

the offense, and 21 criminal history points led to a total offense

level of 34, criminal history category of VI, and advisory Sentencing

Guidelines range of 262 to 327 months in prison. PSR ¶¶ 30-34,

62, 142 (Doc. 8). Fleming was also designated as a career-offender

due to his prior Illinois convictions for armed robbery, aggravated

assault of a police officer with a firearm, and drug trafficking. PSR

¶ 42, 54, 57, 58. However, this designation did not impact his

advisory Sentencing Guidelines range, as it resulted in the same

total offense level and criminal history category with or without the

enhancement. On February 11, 2009, the sentencing court

sentenced Fleming to 286 months’ imprisonment. (Doc. 6 at App.

28).

Fleming did not appeal the 2009 judgment, and he did not file

his first motion under § 2255 until May 2016. (Doc. 6 at App. 30-

31). In that counseled motion, he claimed that his sentence was

unconstitutional in light of the Supreme Court’s June 2015

holding that the residual clause of 18 U.S.C. § 924(e) was

unconstitutionally vague. Id. at 30; see Johnson v. United States,

135 S. Ct. 2551 (2015). With the United States’ agreement,

Fleming asked the court to stay the proceedings until January

2017. Id. Eleven months later, on April 14, 2017, Fleming

voluntarily dismissed his case.

In December 2017, Fleming again filed a motion under § 2255

in the sentencing court, raising various claims unrelated to his

challenge here. The sentencing court treated Fleming’s second

motion under § 2255 as a first collateral attack since he had

dismissed his initial § 2255 motion without prejudice before the

United States responded. However, the sentencing court denied

collateral relief after concluding the motion was untimely under 28

U.S.C. § 2255(f)(1).

Fleming filed this Petition for Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2241 (Doc. 1) on February 10, 2020. He is

currently incarcerated at the Federal Correctional Institution in

Pekin, Illinois, and seeks to challenge his sentence pursuant to the

28 U.S.C. § 2255(e) savings clause. He argues that he should not

have been sentenced as a career offender under the advisory

Sentencing Guidelines because his Illinois drug conviction is not a

predicate offense in light of Mathis v. United States, 136 S. Ct.

2243 (2016) and raises arguments about the validity of his other

predicate sentences as well. Fleming also filed a Motion to Amend

(Doc. 4) prior to Respondent’s response. It is not clear what

additional claim Fleming seeks to bring or supplement in his

Motion, but Fleming does mention the information filed by the

government resulting in his § 851 sentencing enhancement.

Respondent filed his response (Doc. 5-1) on April 22, 2020,

raising five grounds on which he argues that Fleming’s claim must

be dismissed: (1) Fleming’s claim that he was erroneously

designated a career-offender under the advisory Sentencing

Guidelines is not cognizable on collateral review; (2) Fleming’s

advisory Sentencing Guidelines range was not impacted by the

career-offender designation; (3) a motion under § 2255 would not

have been inadequate or ineffective to test the legality of Fleming’s

detention; (4) Fleming’s petition is an abuse of the writ; and (5)

Fleming’s claim does not rely on Mathis v. United States, 136 S.

Ct. 2243 (2016). Fleming filed a reply (Doc. 13) on August 11,

2020. As explained below, the Court agrees with the Respondent

that Flemings claims are not cognizable on collateral review and

the Court will now dismiss the Petition.

II. LEGAL STANDARD1

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, 872 F.3d 811, 813 (7th Cir.

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

1 The Court notes that Respondent has reserved for further review its position

that the motion remedy under § 2255 is inadequate or ineffective to test the

legality of a prisoner’s detention only if a class of argument is categorically

excluded under the statute. However, as Respondent concedes, this Court is

bound by circuit precedent.

because the law changed after his first 2255 motion.” In re

Davenport, 147 F.3d 605, 611 (7th Cir. 1998).

The Seventh Circuit has developed a three-part test to

determine whether 2255 was “inadequate or ineffective:

• Step #1: the federal prisoner must seek relief based on

a decision of statutory interpretation (as opposed to a

decision of constitutional interpretation, which the

inmate could raise in a second or successive § 2255

motion);

• Step #2: the statutory rule of law in question must

apply retroactively to cases on collateral review and could

not have been invoked in a first § 2255 motion; and

• Step #3: a failure to afford the prisoner collateral relief

would amount to an error ‘grave enough’ to constitute ‘a

miscarriage of justice.’

Worman v. Entzel, 953 F.3d 1004, 1008 (7th Cir. 2020) (citing

Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016); Beason v.

Marske, 926 F.3d 932, 935 (7th Cir. 2019)). Only after a petition

meets all three steps can a Court consider the claims on the

merits.

III. DISCUSSION

In his § 2241 Petition, Fleming seeks to challenge his career

offender designation under the advisory Sentencing Guidelines.

The Court agrees with Respondent that this claim is not cognizable

in a collateral review because Fleming cannot show a miscarriage

of justice and declines to address Respondent’s additional

arguments for dismissal. Furthermore, any claims Fleming sought

to raise regarding his § 851 sentencing enhancement similarly

must be dismissed because he cannot show that he is suffering a

miscarriage of justice.

Even assuming Fleming’s underlying claim is correct, errors

in calculating an advisory sentencing guidelines range do not

amount to a miscarriage of justice. See Hawkins v. United States,

706 F.3d 820, 824 (7th Cir.), opinion supplemented on denial of

reh’g, 724 F.3d 915 (7th Cir. 2013); United States v. Coleman, 763

F.3d 706, 708 (7th Cir. 2014), as amended on denial of reh’g and

reh’g en banc (Oct. 16, 2014); Hanson v. United States, 941 F.3d

874, 876 (7th Cir. 2019). As the Seventh Circuit explained in

Hawkins, after the sentencing guidelines became advisory, a “judge

may not even presume that a sentence within the applicable

guidelines range would be proper. He must determine whether it is

consistent with the sentencing considerations set forth in 18

U.S.C. § 3553(a), and if he finds it is not he may not impose it even

though it is within the applicable guidelines range.” Hawkins, 706

F.3d at 822. Even had the judge not made the alleged error in

calculating the guidelines range, the judge still would not be

required to give a lower a sentence. Id. at 824. Accordingly, the

Seventh Circuit found that “a sentence that is well below the

ceiling imposed by Congress . . . [cannot] be considered a

‘miscarriage of justice’ that can be collaterally attacked, just

because the judge committed a mistake en route to imposing it.”

Id. at 824-25. The Seventh Circuit acknowledged that the error

might not be harmless, “but not every error is corrigible in a

postconviction proceeding, even if the error is not harmless.” Id.

at 823; see also United States v. Coleman, 763 F.3d 706, 710 (7th

Cir. 2014).

Moreover, the Seventh Circuit recently reaffirmed Hawkins

holding in Hanson v. United States, 941 F.3d 874 (7th Cir. 2019).

There, the Seventh Circuit addressed a claim that, in light of

Mathis, an enhancement under the advisory Sentencing Guidelines

was erroneously applied. Id. at 877. The Seventh Circuit found

that Hawkins controlled and that their holding in Chazen v.

Marske, 938 F.3d 851 (7th Cir. 2019) was distinguishable. In

Chazen, the Seventh Circuit held that Mathis may provide a basis

for awarding habeas relief under 28 U.S.C. § 2241 from an Armed

Career Criminal Act sentence that imposed a mandatory minimum

sentence. Chazen, 938 F.3d at 862. However, in Hanson, the

district court sentenced the petitioner “not with mandatory

minimums, but with combined considerations from the advisory

Guidelines and the appropriate factors. While the Armed Career

Criminal Act requires a mandatory minimum of 15 years, a judge

must independently determine the sentence based on 18 U.S.C.

§ 3553(a) factors and whether the career offender enhancement

applies.” Hanson, 941 F.3d at 878.

Here, like Hanson, the holding in Hawkins controls. The

Court sentenced Petitioner under the advisory Guidelines to a

sentence of 286 months’ imprisonment, which was well within the

statutory range of ten years to life imprisonment. See 21 U.S.C.

§§ 841(a)(1), (b)(1)(B). The alleged error in designating Fleming a

career criminal under the advisory Sentencing Guidelines does not

represent a miscarriage of justice and is not cognizable in a § 2241

petition. Moreover, the alleged error in designating Fleming a

career criminal did not even impact his advisory Sentencing

Guidelines range due to his extensive criminal history, further

showing that no miscarriage of justice could be said to have

occurred as a result.

In his motion to amend and in his reply, while difficult to

follow, Fleming also appears to challenge the § 851 statutory

enhancement he received. The Court finds that this claim must be

dismissed for similar reasons. Assuming, arguendo that Fleming is

correct that his sentence should not have been subject to a

statutory enhancement, Fleming cannot show that he is suffering

from a miscarriage of justice. The Seventh Circuit has found an

error is grave enough meet this standard if it is an error that

results in a conviction “of a nonexistent crime,” Davenport, 147

F.3d at 611, or “a ‘fundamental error equivalent to actual

innocence,’” Brown v. Rios, 696 F.3d 638, 641 (7th Cir. 2012)

(citing Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir. 2002). A

miscarriage of justice can occur “when a petitioner’s sentence is

increased by application of an enhancement of which he was

actually innocent.” Perrone v. United States, 889 F.3d 898, 904

(7th Cir.), cert. denied, 139 S. Ct. 654, 202 L. Ed. 2d 502 (2018)

(citing Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir.

2011) (finding that a miscarriage of justice occurred when a

defendant sentenced under the mandatory sentencing guidelines

was erroneously classified as a career offender, increasing his

mandatory sentencing guidelines range)).

Here, Fleming’s statutory sentencing range was enhanced

from five to forty years to ten years to life imprisonment based on

the finding that he had a prior felony drug conviction. See 21

U.S.C. § 841(b)(1)(B). However, his sentence of 286 months’

imprisonment is well within either statutory range. Accordingly,

even if Fleming were actually innocent of the statutory

enhancement, he cannot show that his sentence was “increased by

application of an enhancement of which he was actually innocent.”

Perrone, 889 F.3d at 904 (emphasis added); see also Hawkins, 706

F.3d at 824-25 (“[A] sentence that is well below the ceiling imposed

by Congress . . . [cannot] be considered a ‘miscarriage of justice’

that can be collaterally attacked, just because the judge committed

a mistake en route to imposing it.”). Accordingly, even if the § 851

sentencing enhancement were erroneously applied, he cannot

show that he is suffering a miscarriage of justice as a result of the

error.

IV. CONCLUSION

For the reasons stated, Petitioner Robert Fleming’s Petition

for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) is

DISMISSED pursuant to 28 U.S.C. § 2255(e). Petitioner’s Motion

to Amend (Doc. 4) is GRANTED to the extent that the Court

considered the arguments in reaching the Court’s decision.

This case is CLOSED. The Clerk is DIRECTED to prepare the

Judgment in favor of the Respondent.

ENTER: October 2, 2020

FOR THE COURT:

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE