Maxwell v. Werlich

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DON JUAN MAXWELL, #31799-044, )

)

Petitioner, )

)

vs. ) Case No. 18-0486-SMY

)

T. G. WERLICH, )

)

Respondent. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Petitioner Don Juan Maxwell, an inmate in the Bureau of Prisons, filed a Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2241 on February 23, 2018. (Doc. 1). Maxwell was

sentenced to 300 months imprisonment in 2006 after a jury found him guilty of possessing with

intent to distribute more than 50 grams of cocaine base (also known as “crack cocaine”). United

States v. Don Juan Maxwell, No. 05-cr-0238, Doc. 66 (E.D. Mo. Feb. 17, 2006). His Guidelines

range was enhanced after he was found to be a career offender under U.S.S.G. § 4B1.1, based in

part on Maxwell’s three prior burglary convictions. However, the sentencing court varied

downwards from the Guidelines’ career offender range of 360 months to life imprisonment and

instead imposed a sentence within the non-career offender Guidelines range. Id. at Doc. 69, pp. 4,

24.

Maxwell now invokes Mathis v. United States, – U.S. –, 136 S. Ct. 2243 (2016) to

challenge his designation as a career offender based on his prior burglary convictions and contends

he is entitled to be resentenced without that designation. Specifically, Maxwell argues that these

prior convictions do not qualify as “crimes of violence” under U.S.S.G. § 4B1.2(a)(2) (2006)

because they criminalize a broader swath of conduct than the generic definition of burglary as

defined by the Supreme Court. (Doc. 1, pp. 16–19).

Respondent opposes issuance of the Writ on multiple grounds. Respondent argues that

Maxwell cannot satisfy the requirements of § 2255(e)’s savings clause, noting his alleged harm

cannot be deemed a “miscarriage of justice” since his sentence fell within the statutory maximum

penalty for his crimes of conviction, regardless of his career offender designation. (Doc. 12, pp.

7–12). Respondent also argues that Maxwell procedurally defaulted his current habeas claim by

failing to raise it on direct appeal or in his original § 2255 motion. (Id. at pp. 6–7). Maxwell

replied to Respondent’s response, (Doc. 10), and the parties each filed supplemental briefings

discussing additional legal authority. (Docs. 11, 12, 14, 15).

This matter is now ripe for resolution. For the reasons discussed below, Maxwell’s § 2241

Petition (Doc. 1) will be DENIED.

Procedural History and Relevant Facts

On October 13, 2005, a jury found Maxwell guilty of one count of possession with intent

to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(iii). United States v. Don Juan Maxwell, No. 05-cr-0238, Doc. 42 (E.D. Mo. Oct. 13,

2005).1 At the time of his conviction and sentencing, Maxwell’s statutory sentencing range

included a maximum of life imprisonment.2 Notably, even under the current United States Code,

possessing with intent to distribute or dispense 28 grams or more of cocaine base carries a statutory

maximum penalty of forty years (480 months) imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii)

(2018).

1 Maxwell was also found guilty of possession with the intent to distribute a mixture

containing a detectable amount of heroin, and was sentenced to 240 months imprisonment

to be served concurrently with his longer sentence for his cocaine base conviction.

2 21 U.S.C. § 841(b)(1)(A)(iii) (2002).

The Presentence Report (“PSR”) applied the Guidelines’ career offender designation to

Maxwell pursuant to U.S.S.G. § 4B1.1(a) due to his prior burglary convictions.3 However, at

Maxwell’s sentencing, the judge explicitly stated his belief that “it [was] more appropriate to

sentence [Maxwell] in the range of a total offense level of 34” instead of applying the greater

offense level set forth by the career offender designation. Id. at Doc. 69, p. 24. The judge further

stated that “if [Maxwell] was not a career offender [under the Guidelines] . . . the [Guidelines

range] would be 262 months to 327 months imprisonment” instead of 360 months to life

imprisonment. Id. at p. 4. Maxwell was ultimately sentenced to 300 months imprisonment, which

was within the non-career offender Guidelines range and represented a downwards variance from

the career offender Guidelines range of 360 months to life imprisonment. Id. at p. 24.

Maxwell filed a direct appeal relating to alleged racial discrimination during his jury

selection and the district court’s rulings regarding the same. The Eighth Circuit affirmed the

judgment on appeal in 2007. United States v. Maxwell, 473 F.3d 868 (2007). Maxwell then sought

relief under 28 U.S.C. § 2255. His first motion, filed in January 2008, argued that his trial counsel

was constitutionally ineffective. This motion was denied by the district court and no certificate of

appealability was issued. Maxwell v. United States, No. 08-cv-0062, Doc. 7 (E.D. Mo. May 12,

2010). Maxwell’s subsequent application for leave to file a second or successive § 2255 motion,

which like the instant Petition, was premised in part on Mathis v. United States, – U.S. –, 136 S.

Ct. 2243 (2016), was also denied by the Eighth Circuit, Maxwell v. United States, No. 16-cv-1017-

3 The PSR is filed under seal at Doc. 65 in Maxwell’s criminal case, United States v. Don

Juan Maxwell, No. 05-cr-0238, Doc. 65 (E.D. Mo. Feb. 17, 2006). Because it is sealed,

this Court was unable to access it, and neither party has provided a complete copy to the

Court. However, Maxwell’s sentencing memorandum and hearing transcript references

(and explicitly declined to object to) the career offender designation in the PSR, id. at Doc.

62, pp. 1–2, as did the sentencing court during Maxwell’s sentencing hearing. Id. at Doc.

69, pp. 18–19 (“There has been no attack upon the methodology for calculating that the

defendant is a career offender . . . .”).

AGF, Doc. 2 (July 12, 2016); Maxwell v. United States, No. 16-2291, Doc. 8 (8th Cir. Nov. 22,

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

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, 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, Maxwell argues he was improperly designated as a career offender under

the Guidelines because his prior burglary convictions criminalize more behavior than the generic

definition of burglary set forth by the Supreme Court. (Doc. 1, pp. 15–19). Before reaching the

merits of this argument, the Court must first consider whether Maxwell’s claim can be brought

within the narrow scope of § 2255’s savings clause. The Court agrees with Respondent that

Maxwell cannot demonstrate the existence of a fundamental defect in his conviction or sentence

that is grave enough to be deemed a miscarriage of justice, and 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 career offender Guidelines range that applied to Maxwell was advisory, not mandatory,

because he was sentenced in 2006, more than a year after the Booker decision. United States v.

Maxwell, No. 05-cr-0238, Doc. 66 (E.D. Mo. Feb. 17, 2006). The applicable statutory sentencing

range for Maxwell’s conviction at the time of his sentencing was 10 years to life imprisonment

pursuant to 21 U.S.C. § 841(b)(1)(A)(iii) (2002). While 21 U.S.C. § 841 has been amended since

Maxwell’s conviction was made final, that makes no difference to Maxwell’s argument here—a

conviction for possession with intent to distribute more than 28 grams grams of cocaine base still

carries a statutory maximum penalty of forty years (480 months) imprisonment. See 21 U.S.C.

§ 841(b)(1)(B)(iii) (2018). Thus, Maxwell’s 300-month sentence fell within the statutory

maximum sentence for his conviction, both under the version of the statute in force at his 2006

sentencing and the statute as it exists today.

Maxwell argues that he could not have brought his claim within a year of his final

conviction in 2006 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

4 Because Hawkins dictates that Maxwell cannot possibly satisfy Davenport’s “miscarriage

of justice” factor, which is dispositive of his Petition, the Court need not decide whether

Maxwell has satisfied the other two Davenport factors.

to a “miscarriage of justice” (the third Davenport factor) so long as the sentence is within the

applicable statutory limit. Therefore, Maxwell’s Petition does not meet the criteria to bring his

claim within § 2255(e)’s savings clause.

Maxwell attempts to distinguish Hawkins by arguing that, unlike the petitioner in Hawkins,

he is raising a constitutional challenge to his sentence. He argues that his sentence violates his due

process right to be sentenced based on accurate information. (Doc. 10, pp. 16–21). He claims his

sentence was based on inaccurate information because his prior convictions no longer qualify as

predicate crimes for the career offender enhancement.

The Court disagrees with Maxwell’s reading of the cases he cites in support of his

argument. A defendant does have a due process right to be sentenced based on accurate

information. U.S. ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984), citing United States v.

Tucker, 92 S.Ct. 589, 591 (1972) and Townsend v. Burke, 68 S.Ct. 1252 (1948). However,

Maxwell misconstrues the scope of that right.

Due process is violated by reliance on factually incorrect information at sentencing. In

Townsend, the sentencing court mistakenly believed the defendant had been convicted on several

charges when he in fact had been acquitted or the charges had been dropped. Townsend, 68 S. Ct.

at 1255. In Tucker, the sentencing court was unaware that two of the defendant’s prior convictions

were invalid because they had been obtained in violation of his right to counsel. Tucker, 92 S. Ct.

at 592. In Welch, the sentencing court believed the defendant had been previously convicted of

armed robbery, but the prior conviction was only for robbery. Welch, 738 F.2d at 865. See also,

United States v. Melendez, 819 F.3d 1006, 1012 (7th Cir. 2016) (drug quantity); United States v.

Jones, 454 F.3d 642, 652 (7th Cir. 2006) (court considered prior conviction that had been

overturned).

Here, the allegedly inaccurate information is not the fact of the prior convictions; it is the

conclusion that the prior convictions qualified as predicate crimes for the career offender

enhancement. The question of whether a prior crime qualifies as predicate crime is a legal

question, not a factual one. Maxwell cites no case wherein an erroneous determination of a legal

question was held to be the kind of “inaccurate information” which violated due process. This

Court’s independent research has not identified such a case.

The ultimate issue in Hawkins is analogous to the issue Maxwell raises: the alleged

miscalculation of an advisory Guideline range, based on an enhancement factor (here, the career

offender designation) which Maxwell argues is impermissible 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). Thus, Hawkins remains binding precedent in this Circuit and Maxwell’s

Petition must be dismissed.

Conclusion

For the above reasons, Maxwell’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)(B). 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: January 10, 2020

s/ Staci M. Yandle

STACI M. YANDLE

United States District Judge