concluding that NEB. REV. STAT. § 28-311.01 “ha[s] as an element the use, attempted use, or threatened use of physical force against the person of another”
How later courts described this case
- concluding that NEB. REV. STAT. § 28-311.01 “ha[s] as an element the use, attempted use, or threatened use of physical force against the person of another”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TROY CRAMER, #16783-047, )
)
Petitioner, )
)
vs. ) Case No. 18-cv-0258-SMY
)
T. G. WERLICH, )
)
Respondent. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
Petitioner Troy Cramer, an inmate in the Bureau of Prisons, filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2241 on February 12, 2018. (Doc. 1). Cramer was sentenced
to 262 months imprisonment in 2013 after pleading guilty to conspiracy to distribute 500 grams or
more of a mixture containing methamphetamine. United States v. Troy Cramer, No. 13-cr-3011-
JMG-CRZ, Doc. 36 (D. Neb. Aug. 19, 2013). His Guidelines range was enhanced after he was
found to be a career offender under U.S.S.G. § 4B1.1, based on a prior federal controlled substance
conviction and a Nebraska state conviction for terroristic threats. Id. at Doc. 78, p. 2.
Cramer now invokes Mathis v. United States, – U.S. –, 136 S. Ct. 2243 (2016) to challenge
his designation as a career offender based on the Nebraska conviction and contends he is entitled
to be resentenced without that designation. Specifically, Cramer argues that this prior conviction
pursuant to NEB. REV. STAT. § 28-311.01 (1986) does not qualify as a “crime of violence” under
the Guidelines because it does not have as an element the use, attempted use, or threatened use of
physical force again the person of another. (Doc. 1, pp. 4–7).
Respondent opposes issuance of the Writ on multiple grounds: First, that Cramer waived
his collateral challenge rights as part of his plea agreement, which forecloses his Petition (Doc. 8,
pp. 5–6); Second, that Cramer’s sentence cannot be deemed a “miscarriage of justice” under
§ 2255(e)’s savings clause, as it fell within the statutory maximum penalty for his crime of
conviction regardless of his career offender designation (Id. at pp. 6–9); and Finally, that Cramer’s
Nebraska terroristic threats conviction meets the Sentencing Guidelines’ definition of “crime of
violence” because the threatened use of physical force is an essential element of the statute—thus
his claim fails on the merits. (Id. at pp. 8–10). Cramer filed a reply (Doc. 10) and filed a
supplemental pleading with additional authority (Doc. 11).
This matter is now ripe for resolution. For the reasons discussed below, Cramer’s § 2241
Petition (Doc. 1) will be DENIED.
Procedural History and Relevant Facts
On May 22, 2013, Cramer pleaded guilty to one Count of conspiracy to distribute 500
grams or more of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A)(viii). United States v. Troy Cramer, No. 13-cr-3011-JMG-CRZ, Doc. 22 (D. Neb.
May 22, 2013). Cramer entered into a formal Plea Agreement in which he agreed that he
“knowingly and expressly waive[d] any and all rights to contest [his] . . . sentence in any post-
conviction proceedings, including any proceedings under 28 U.S.C. § 2255 . . . .” Id. at Doc. 25,
pp. 6–7.1 While neither party has provided the Presentence Report (“PSR”) to the Court, there is
no dispute that Cramer was determined to be a career offender under the Guidelines by the
1 Cramer’s plea agreement contained two express exceptions to this waiver, neither of which are applicable
to the instant Petition: 1) Cramer reserved the right to timely challenge his conviction and sentence should
either the Eighth Circuit or the Supreme Court later find that the charge to which Cramer agreed to plead
guilty to fails to state a crime; and 2) Cramer reserved the right to seek post-conviction relief based on
ineffective assistance of counsel or prosecutorial misconduct in certain situations. Id. at p. 7.
sentencing court, in part due to his prior Nebraska conviction for terroristic threats under NEB.
REV. STAT. § 28-311.01 (1986). (Doc. 1, pp. 2, 4–7; Doc. 2, p. 3).2 Cramer’s statutory sentencing
range included a minimum of ten years (120 months) imprisonment and a maximum of life
imprisonment. 21 U.S.C. § 841(b)(1)(A)(viii). After the career offender designation was applied,
Cramer was sentenced at the low end of the Guidelines range to 262 months imprisonment on
August 19, 2013. Cramer, No. 13-cr-3011-JMG-CRZ, Doc. 36 (D. Neb. Aug. 19, 2013); see also
id. at Doc. 78.
Cramer did not file a direct appeal. He did, however, file a motion under 28 U.S.C. § 2255
in the District of Nebraska. He argued, as he does here, that his prior conviction for terroristic
threats under Nebraska law should not have been used to enhance his sentence under the
Guidelines. Id. at Doc. 66. His argument was premised on Johnson v. United States, 576 U.S. –,
135 S. Ct. 2551 (2015) instead of Mathis, and he argued that his career offender designation was
made pursuant to the Guidelines’ “residual clause” instead of its “elements clause.” Id.; compare
U.S.S.G. § 4B1.2(a)(1) with § 4B1.2(a)(2). The § 2255 motion was denied after citation to
Cramer’s plea waiver as well as a discussion of the merits of his motion. Id. at Doc. 78.3 The
Eighth Circuit Court of Appeals affirmed the denial, Cramer v. United States, 700 F. App’x 562
(8th Cir. 2017) (per curiam) and denied Cramer’s Petition for Rehearing en banc. United States v.
2 The PSR is filed under seal at Doc. 38 in Cramer’s criminal case, United States v. Cramer, No. 13-cr-
3011-JMG-CRZ (D. Neb. Aug. 19, 2013). Because it is sealed, this Court was unable to access it, and
neither party has provided a complete copy to the Court. However, both Cramer’s Petition and
Respondent’s Response reference the specific grounds for Cramer’s career offender designation, as did the
sentencing court in its ruling on Cramer’s 28 U.S.C. § 2255 post-conviction motion. Id. at Doc. 78, p. 2.
3 In his opinion denying Cramer’s § 2255 petition, Judge Gerrard concluded that Cramer’s Nebraska
conviction was not a “crime of violence” under the elements clause of U.S.S.G. § 4B1.2(a), which is the
argument Cramer makes in the instant Petition. See id. at pp. 3–5. However, this discussion was dicta that
did not ultimately factor into the court’s decision to deny Cramer’s petition, and was also made prior to the
Eighth Circuit’s decision in Fletcher v. United States, 858 F.3d 501 (8th Cir. 2017) (concluding that NEB.
REV. STAT. § 28-311.01 “ha[s] as an element the use, attempted use, or threatened use of physical force
against the person of another”).
Cramer, No. 13-cr-3011-JMG-CRZ, Doc. 88 (D. Neb. Dec. 19, 2017).
Applicable Legal Standards
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not be used to
raise claims of legal error in conviction or sentencing, but are instead limited to challenges
regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir.
1998). Aside from the direct appeal process, a § 2255 motion is ordinarily the “exclusive means
for a federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir.
2003). A prisoner is generally limited to one challenge of his conviction and sentence under
§ 2255. A prisoner may not file a “second or successive” § 2255 motion unless a panel of the
appropriate court of appeals certifies that such motion either 1) contains newly discovered
evidence “sufficient to establish by clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense,” or 2) invokes “a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h).
Under very limited circumstances, however, it is possible for a prisoner to challenge his
federal conviction or sentence under § 2241. 28 U.S.C. § 2255(e) contains a “savings clause”
under which a federal prisoner can file a § 2241 petition when the remedy under § 2255 is
“inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). See United
States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The Seventh Circuit construed the savings
clause in In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998): “A procedure for postconviction
relief can be fairly termed inadequate when it is so configured as to deny a convicted defendant
any opportunity for judicial rectification of so fundamental a defect in his conviction as having
been imprisoned for a nonexistent offense.”
Following Davenport, a petitioner must meet three conditions to trigger the savings clause.
First, he must show that he relies on a new statutory interpretation case rather than a constitutional
case. Secondly, he must show that he relies on a decision that he could not have invoked in his
first § 2255 motion and that case must apply retroactively. Lastly, he must demonstrate that there
has been a “fundamental defect” in his conviction or sentence that is grave enough to be deemed
a miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See also Brown
v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). In other words, something more than a lack of success
with a § 2255 motion must exist before the savings clause is satisfied.” See Webster v. Daniels,
784 F.3d 1123, 1136 (7th Cir. 2015).
Analysis
In light of Mathis, Cramer argues he was improperly designated as a career offender
because his prior Nebraska conviction does not have as an element the use, attempted use, or
threatened use of physical force against the person of another, which is necessary to be considered
a “crime of violence” under the Guidelines’ elements clause. (Doc. 1, pp. 4–7); U.S.S.G.
§ 4B1.2(a)(1). Before reaching the merits of this argument, the Court must first consider whether
Cramer’s claim can be brought within the narrow scope of § 2255’s savings clause. The Court
agrees with Respondent that Cramer cannot demonstrate the existence of a fundamental defect in
his conviction or sentence that is grave enough to be deemed a miscarriage of justice, thus he
cannot satisfy the requirements of § 2255(e)’s savings clause to bring his Mathis claim in a § 2241
petition.
Some errors can be raised on direct appeal but not in a collateral attack by a § 2255 motion
or a § 2241 petition. A claim that a defendant’s Guidelines sentencing range was erroneously
calculated 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 since the Supreme Court decided United
States v. Booker, 543 U.S. 220 (2005). Perry v. United States, 877 F.3d 751, 754 (7th Cir. 2017).
The Guidelines range that applied to Cramer was advisory, not mandatory, because he was
sentenced in 2013, well after the Booker decision. United States v. Cramer, No. 13-cr-3011-JMG-
CRZ, Doc. 36 (D. Neb. Aug 19, 2013). The applicable statutory sentencing range for Cramer’s
conviction at the time of his sentencing was 10 years to life imprisonment, pursuant to 21 U.S.C.
§ 841(b)(1)(A)(viii). Thus, Cramer’s 262-month sentence fell within the statutory maximum
sentence allowed under the statute.
Cramer argues that he could not have brought his claim within a year of his final conviction
in 2013 because the argument he raises was foreclosed to him until after Mathis was decided in
2016. Even assuming, arguendo, that the first and second Davenport criteria have been met,4
Hawkins dictates that an erroneous application of the advisory guidelines does not amount to a
“miscarriage of justice” (the third Davenport factor) so long as the sentence is within the applicable
statutory maximum limit. Therefore, Cramer’s Petition does not meet the criteria to bring his claim
within § 2255(e)’s savings clause.
In short, there is no meaningful way to distinguish Hawkins from this case. The issue in
4 Because Hawkins dictates that Cramer cannot possibly satisfy Davenport’s “miscarriage of justice” factor,
which is dispositive of his Petition, the Court need not decide whether Cramer has satisfied the other two
Davenport factors. Likewise, the Court need not reach the merits of Respondent’s argument that Cramer’s
Petition is foreclosed by his appeal waiver in the plea agreement. (Doc. 8, pp. 5–6).
Hawkins was the same as the issue raised here by Cramer: the use of a prior conviction that would
allegedly no longer qualify as a predicate for the career offender guideline enhancement under
current law. In its supplemental opinion on denial of rehearing in Hawkins, the Seventh Circuit
summarized its holding: “an error in calculating a defendant’s guidelines sentencing range does
not justify postconviction relief unless the defendant had . . . been sentenced in the pre-Booker era,
when the guidelines were mandatory rather than merely advisory.” Hawkins, 724 F.3d at 916
(internal citations omitted). Hawkins remains binding precedent in this Circuit, and Cramer’s
Petition must be dismissed.
Conclusion
For the above reasons, Cramer’s Petition for Writ of Habeas Corpus Under 28 U.S.C.
§ 2241 (Doc. 1) is DENIED and this action is DISMISSED with prejudice. The Clerk of Court
is DIRECTED to enter judgment accordingly.
If Petitioner wishes to appeal the dismissal of this action, his notice of appeal must be filed
with this Court within 60 days of the entry of judgment. FED. R. APP. P. 4(a)(1(A). A motion for
leave to appeal in forma pauperis (“IFP”) must set forth the issues Petitioner plans to present on
appeal. See FED. R. APP. P. 24(a)(1)(C). If Petitioner does choose to appeal and is allowed to
proceed IFP, he will be liable for a portion of the $505.00 appellate filing fee (the amount to be
determined based on his prison trust fund account records for the past six months) irrespective of
the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger,
547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien
v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) may toll the 60-day appeal deadline. FED. R. APP. P. 4(a)(4).
A Rule 59(e) motion must be filed no more than twenty-eight (28) days after the entry of the
judgment, and this 28-day deadline cannot be extended. Other motions, including a Rule 60
motion for relief from a final judgment, do not toll the deadline for an appeal.
It is not necessary for Petitioner to obtain a certificate of appealability from this disposition
of his § 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: August 15, 2019
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge