Putzier v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DENNIS PUTZIER, )

#07675-029, )

)

Petitioner, )

)

vs. ) Case No. 19-cv-00738-SMY

)

USA,1 )

)

Respondent. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Petitioner Dennis Putzier, an inmate currently incarcerated at the United States Penitentiary

located in Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241. He

challenges his enhanced sentence as a career offender in United States v. Putzier, No. 10-cr-04114-

MWB-KEM (N.D. Iowa, 2011) (“Criminal Case”) based on his prior Iowa burglary conviction.

(Doc. 1). Putzier relies on Mathis v. United States, 136 S. Ct. 2243 (2016), in which the Supreme

Court concluded that convictions under Iowa’s burglary statute cannot give rise to sentence

enhancement under the Armed Career Offender Act, 18 U.S.C. § 924(e).

This matter is now before the Court for review of the Petition pursuant to Rule 4 of the

Federal Rules Governing § 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

1 The Court notes that the United States is named as the sole respondent. The proper respondent in a habeas corpus

proceeding is the person who has immediate custody over the petitioner. 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542

U.S. 426, 434–35 (2004); Rules 2(a) and (b) of the Rules Governing Section 2254 Cases in the United States District

Courts. Consequently, the warden of the United State Penitentiary located in Greenville, not the United States, is the

proper respondent. See Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir.2005) (any respondent who is not the

prisoner's custodian should be dropped from the action). This error, however, will not be remedied as the case will be

dismissed with prejudice.

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.

Procedural Background

Putzier pled guilty to federal methamphetamine charges and was sentenced to 262 months

incarceration as a career offender under § 4B1.1 of the U.S. Sentencing Guidelines Manual. See

Putzier v. United States, No. 14-cv-04047-MWB-KEM (N.D. Iowa, Oct. 14, 2014) (Doc. 4) (Order

denying § 2255 motion and discussing case history).2 On appeal, Putzier challenged the career

offender enhancement and the Eighth Circuit Court of Appeals affirmed the sentence. Id. Putzier

also filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 in 2014,

arguing the sentencing court erred in “using the modified categorical approach to determine that

his 2011 Iowa burglary in the third degree conviction constituted a crime of violence for the

purposes of career offender guidelines[,]” in violation of the Supreme Court’s ruling in Descamps

v. Unites States, 133 S. Ct. 2276 (2013). Id. at p. 1. The sentencing court found that the ruling in

Descamps was not retractive and dismissed the Motion as time-barred. Id. at p. 6. The court also

concluded that even if the ruling in Descamps was applied retroactively to Putzier’s criminal case,

his “burglary conviction would still constitute a crime of violence for purposes for the career

offender guideline.” Id. at p. 7. The Eighth Circuit Court of Appeals denied Putzier’s Application

for a Certificate of Appealability, (Id., Doc. 12, May, 15, 2015) and Petition for Authorization to

File a Successive Habeas Application (Id., Doc. 14, Feb., 4. 2019).

2 The Court has consulted the Public Access to Court Electronic Records (“PACER”) website (www.pacer.gov) to

verify Putzier’s litigation and criminal case history. See Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 930 n.2 (S.D.

Ill. 2006) (a court may judicially notice public records available on government websites) (collecting cases).

Discussion

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 limited to one challenge of his conviction and sentence under § 2255 and

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, a prisoner may 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).

Some errors can be raised on direct appeal but not in a collateral attack pursuant to §§ 2255

or 2241. A claim that a defendant was erroneously treated as a career offender under the

Sentencing Guidelines is one such claim. As the Seventh Circuit has noted, “[W]e held in Hawkins

that the error in calculating the Guidelines range did not constitute a miscarriage of justice for

[Section] 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.”

United States v. Coleman, 763 F.3d 706, 708–09 (7th Cir. 2014); see also Hawkins v. United States,

706 F.3d 820 (7th Cir. 2013), supplemented on denial of rehearing, 724 F.3d 915 (7th Cir. 2013).

More recently, the Seventh Circuit reiterated that the Guidelines have been advisory ever since the

Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). Perry v. United States, 877

F.3d 751 (7th Cir. 2017).

Putzier argues that in light of Mathis and related case law,3 he is entitled to relief under the

savings clause from a sentence that exceeds the statutory maximum because his previous Iowa

3 Putzier cites to several cases that have held that a state burglary statute covers more conduct than does generic

burglary for the purposes of qualifying as a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

third degree burglary conviction no longer qualifies as a predicate crime under the Sentencing

Guidelines. (Doc. 1, pp. 4, 6). However, the sentencing Guidelines enhancement and sentencing

range that applied to Putzier were advisory, not mandatory, because he was sentenced in 2011 –

well after the Booker decision. Putzier received a sentence well within the statutory maximum; he

was sentenced to 262 months, and the statutory maximum sentence for his conviction was life

imprisonment. See 21 U.S.C. § 841(a)(1), 841(b)(1)(A), and 841(b)(1)(B); see also Criminal Case,

Doc. 50, p. 2. Moreover, the sentencing court noted that had the career enhancement not applied,

it would have applied “an upward departure for substantial underrepresentation of criminal

history” under sentencing guidelines § 4A1.3. Criminal Case, Doc. 83, pp 15-16 (Sentencing

Transcript). Thus, Putzier cannot demonstrate a miscarriage of justice so as to permit a § 2241

petition, and the savings clause affords him no relief.

Disposition

IT IS HEREBY ORDERED that the Petition for a Writ of Habeas Corpus under 28 U.S.C.

§ 2241 is DISMISSED with 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)

See United States v. Naylor, 887 F.3d 397 (8th Cir. 2018) (Missouri second-degree burglary); United States v.

Rockwell, 207 F. Supp. 3d 915 (W.D. Ark., Sept. 14, 2016)(Missouri second-degree burglary and Iowa attempted

third-degree burglary); United States v. Bess, 655 F. App’x 518 (8th Cir. 2016)(Missouri second-degree burglary). He

also cites to Johnson v. United States, 135 S.Ct. 2551 (2015)(ruling that “imposing an increased sentence under the

residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process.”).

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 IS SO ORDERED.

DATED: 11/18/2019

_____s/Staci M. Yandle_______

STACI M. YANDLE

United States District Judge