# Brown v. Werlick

> District Court, S.D. Illinois · November 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10151187

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** November 6, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DERIC BROWN, )
#06376-089, )
)
Petitioner, )
)
vs. ) Case No. 19-cv-00857-NJR
)
T.G. WERLICK, )
)
Respondent. )
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Petitioner Deric Brown, an inmate who is currently incarcerated at the United States
Penitentiary located in Greenville, Illinois, brings this habeas corpus action pursuant to 28U.S.C.
§2241 to challenge thevalidity of hissentencein Unites States v. Brown,No. 01-cr-00196-JPS-1(E.D.
Wis.2002)(“Criminal Case”).Brownasserts that his sentence was unlawfully enhanced according to
the ruling in Mathis v. United States, 136 S.Ct. 2243 (2016),and in violation of Section 403 of the First
Step Act.
This matter is now before the Court for review of the Petition pursuant to Rule 4 of the Federal
Rules Governing Section 2254 Cases in United States District Courts, which provides that upon
preliminary consideration by the district judge, “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner.” Rule 1(b) gives this Court the authority to
apply the rules to other habeas corpus cases.
BACKGROUND
Brown pled guilty in 2002 to committing multiple bank robberies in violation of 18 U.S.C.
§§2113(a) & (d) and two counts of brandishing a firearm during a crime of violence in violation of
18 U.S.C. § 924(c). (Doc. 1, pp 1-2). See also Brown v. United States, No. 16-cv-471-JPS, Doc. 3 (E.D.
Wis. June 17, 2016) (response from the government to Brown’s 2255 motion discussing Brown’s
criminal case). His appeal was dismissed for lack of jurisdiction because he filed his notice of appeal
on October 3, 2005, years after the deadline to file an appeal under Rule 4(b) of the Federal Rules of
Appellate Procedure. Criminal Case, Doc. 33.
Following the United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015), Brown filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 arguing that federal “armed bank robbery is not a ‘crime of violence’ as defined in Section
924(c); and, as such, his conviction for brandishing a firearm in relation to a crime of violence must be
vacated.” Brown v. United States, No. 16-cv-471-JPS, Doc. 5 (E.D. Wis. July 20, 2016). The district
court denied the motion, and the Seventh Circuit Court of Appeals affirmed, holding that federal bank
robbery constitutes a crime of violence under Section 924(c)(3)(A). Brown v. United States, No. 16-
cv-471-JPS, Doc. 17 (E.D. Wis. July 20, 2016).
In Brown’s criminal case, he received two of his convictions in the same indictment pursuant
to Section 924(c) — “a first conviction carries a mandatory, consecutive term of imprisonment of 7
years, and a second carries an additional mandatory, consecutive term of imprisonment of 25 years”.
Brown v. United States, No. 16-cv-471-JPS, Doc. 3 (E.D. Wis. June 17, 2016) (response from the
government to Brown’s 2255 motion discussing Brown’s criminal case); (Doc. 1, p. 1). In 2002 at the
time of conviction, 18 U.S.C. § 924(c)(1)(A) provided that:
Except to the extent that a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced punishment if committed by the use of
a deadly or dangerous weapon or device) for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the punishment provided for such crime
of violence or drug trafficking crime—...
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than
7 years}...

(C) In the case of a second or subsequent conviction under this subsection, the person shall—
(1) be sentenced to a term of imprisonment of not less than 25 years...
18 U.S.C.A. § 924(c)(1) (2002) (West. 2019)(emphasis added). Since then, Congress has
passed the First Step Act of 2018. First Step Act of 2018, Pub. L. No. 115-391, 8403, 132 Stat. 5194,
5221-5222 (2018). The language of Section 924(c)(1)(C) was changed from “second or subsequent
conviction under this subsection” to “violation of this subsection that occurs after a prior conviction
under this subsection has become final.” /d.; (Doc. 1, p. 5). These modifications to the language
“eliminates the practice of ‘stacking multiple § 924(c) charges in the same indictment to qualify for
the 25-year mandatory minimum for a second or subsequent conviction under § 924(c)(1)(C)G)’ and
allow ‘the enhanced mandatory minimum...only if the prior qualifying § 924(c) conviction was final
under a prior conviction.’” Midkiff v. Warden, FCI-Edgerfield, No. 19-cv-0077, 2019 WL 4894234 at
*2 (D.S.C. Oct. 10, 2019) (quoting the Report and Recommendation).
DISCUSSION
A prisoner who has been convicted in federal court is generally limited to challenging his
conviction and sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the court which
sentenced him. See Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). Under very limited
circumstances, a prisoner may employ 28 U.S.C. § 2241 to challenge his conviction and sentence.
More specifically, Section 2255(e) contains a “savings clause” which authorizes a federal prisoner to
file a Section 2241 petition where the remedy under Section 2255 is “inadequate or ineffective to test
the legality of his detention.” “A procedure for postconviction relief can fairly be 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.” Jn re
Davenport, 147 F.3d 605, 611 (7th Cir. 1998). In order to trigger the savings clause, a petitioner must
meet three conditions: (1) he must show that he relies on a new statutory interpretation case rather than
a constitutional case; (2) he must show that he relies on a decision that he could not have invoked in

his first Section 2255 motion andthat applies retroactively; and(3) 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 F3d 638, 640 (7thCir. 2012).The Seventh Circuit has made it clear that “there must be some kind
of structural problem with [S]ection 2255 before [S]ection 2241 becomes available. In other words,
something more than a lack of success with a [S]ection 2255 motion must exist before the savings
clause is satisfied.” Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
Brown relies on Mathis asanew case of statutory interpretation. (Doc. 1, pp. 2,3-4).He states

that the changes to the language of Section 924(c)(1)(C) by the First Step Act do not establish a new
rule but clarify the meaning of the term conviction to mean a finding of guilt. (Id. at p. 5). He claims
that this modification is not a new rule of criminal procedure because the change was compelled by
Supreme Court precedent, which states that it is “unambiguous that ‘conviction’ refers to the finding
of guilt by a judge or jury that necessarily precedes theentry of a final judgmentof conviction.” Deal
v. United States, 113 S. Ct. 129 (1993). He argues that the “Supreme Court was wrong, Congress has
corrected the Court’s Decision” and so the statutory changes should be applied retroactively. (Doc. 1;
p. 5) (citing Chaidez v. United States, 133 S. Ct. 1103 (2013)). Brown also argues that a miscarriage
of justice occurred when, within a single indictment, his first charge of brandishing a firearm was
treated as a first conviction to support the second charge which enhanced his sentence to an additional
25 years.(Id. at p. 4).
For the reasons explained below, Brown has failed to satisfy the requirements necessary to
challenge his conviction and sentence under Section 2241. First, the holding in Mathis is not directly
applicable here. In Mathis, the Supreme Court held that the petitioner could not receive an enhanced
sentence for being a felon in possession of a firearm based on previous state burglary convictionsthat
encompassed a wider range of conduct than was criminalized under the “generic burglary” definition
in the Armed Career Criminal Act, 18 U.S.C. § 924(e), (“ACCA”). 136 S. Ct. 2243. Brown was not
sentenced under the ACCA enhancementbutwas convicted of two counts of brandishing a firearmin
the same indictment under Section 924(c), and so, Mathis does not represent a change in the law that
is relevant to his circumstances.Secondand most importantly,Section 924(c)(1)(C)the First Step Act
states that “[t]his section, and the amendments made by this section, shall apply to any offense that
was committed before the date of enactment of this Act, if a sentence for the offense has not been
imposed as of such date of enactment.” First Step Act of 2018, Pub. L. No. 115-391, §403, 132 Stat.
5194, 5222 (2018).Therefore, the revisions are not retroactive.
Finally, Brown argues that even if the statutory change is considered a new substantive rule,

the change should be applied retroactively because a “conviction or sentence imposed in violation of
a substantive rule is not just erroneous but contrary to law and, as a result, void.”(Doc. 1, p. 6)(quoting
Montgomery v. Louisiana, 136 S.Ct. 718, 731 (2016)). Brown, however, was not convicted under an
unconstitutional law. On the contrary, the previous language of § 924(c)(1)(C) has been upheld by the
Supreme Court. Deal v. United States, 508 U.S. 129 (1993); Greenlaw v. United States, 128 S. Ct.
2559 (2008).
Because Brown has not met the requirements of the savings clause, Section 2241 is not the
proper vehicle for review of his conviction and sentence, and the petition will be dismissed with
prejudice.
DISPOSITION
IT IS HEREBY ORDERED that the Petition for a Writ of Habeas Corpus under 28 U.S.C.
§2241is DISMISSEDwith prejudice.
If Petitioner wishes to appeal this dismissal, he may file a notice of appeal with this Court
within sixty (60) days of the entry of judgment. FED.R.APP.P.4(a)(4). A motion for leave to appeal
in forma pauperis should set forth the issues Petitioner plans to present on appeal. See FED.R.APP.P.
24(a)(1)(C). If he does choose to appeal and is allowed to proceed IFP, Petitioner will be required to
pay a portion of the $505.00 appellate filing fee in order to pursue his appeal (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 timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline. It is not necessary for Petitioner to obtain a
certificate of appealability. Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT ISSO ORDERED.
DATED: November 6, 2019
Thee oeteg!
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151187. Public record. Not legal advice.