Poke, Jr. v. Werlich

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BOBBY POKE, JR., # 07430-028, )

)

Petitioner, )

)

vs. ) Case No. 19-cv-200-NJR

)

M.D. SMITH,1 )

Warden, MCFP-Springfield, Missouri, )

)

Respondent. )

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Petitioner Bobby Poke, Jr., an inmate in the Bureau of Prisons, filed a Petition for Writ of

Habeas Corpus under 28 U.S.C. §2241. (Docs. 1, 9).In 2005, Poke was sentenced to a 310-month

term of imprisonment after his guilty plea in the Southern District of Indiana. The sentence

consisted of concurrent 250-month terms on Counts 1 and 2 for distribution of 5 or more kilograms

of cocaine (21 U.S.C. §841(a)(1) and (b)(1)(A)(ii)), and possession with intent to distribute 500

grams or more of cocaine (21 U.S.C. §841(a)(1) and (b)(1)(B)(ii))respectively, plus a consecutive

60 months for possession of a firearm in relation to a drug trafficking crime (Count 3) (18 U.S.C.

§924(c)(1)). (Doc. 9, p. 2; Doc. 11, p. 3);United States v. Poke, No. 04-cr-27-01 (S.D. Ind., Aug.

5, 2005); (Doc. 11-2).

Poke invokes Mathis v. United States,–U.S. –, 136 S. Ct. 2243 (2016), and United States

1 Warden Smith was substituted as the Respondent in this action after Poke was transferred to the MCFP-

Springfield(Doc. 17); Poke was incarcerated in the Southern District of Illinois at the time he filed the case.

Poke’stransfer to a facility outside this district does not divest this Court of subject matter jurisdiction.See

al-Marri v. Rumsfeld, 360 F.3d 707, 712 (7th Cir. 2004) (citing Ex Parte Endo, 323 U.S. 283 (1944)).

v. Elder, 900 F.3d 491 (7th Cir. 2018), to argue that his statutory mandatory minimum sentence as

well as the calculation of his sentencing guidelines under United States Sentencing Guideline

(USSG) §4B1.2 were improperly enhanced based on a 1995 Illinois conviction for possession

with intent to deliver cocaine. He asks this Court to vacate his sentence and refer the matter to the

Southern District of Indiana to resentence him without the recidivist enhancements. (Doc. 1, p. 8).

Respondent filed a Motion to Dismiss the Habeas Petition (Doc. 11), which is now before

the Court along with Poke’s Response. (Doc. 13).

RELEVANT FACTS AND PROCEDURAL HISTORY

In July 1995, Poke was convicted in Winnebago County, Illinois, Case No. 94-CF-2979,

of possession with intent to deliver 1-15 grams of cocaine, in violation of 720 ILCS 570/401(c)(2)

(1995). (Doc. 9, pp. 1-2; Doc. 11-4).

In March 2005 in the Southern District of Indiana, Poke pled guilty without a plea

agreement to Counts 2 and 3 only; he received sentences of 250 months on the drug offense and

60 months consecutive on the firearm offense. (Doc. 11, p. 3; Doc. 11-1, pp. 4-5). He later entered

a negotiated plea to the Count 1drug offense, on which he received a concurrent 250-month term.

(Doc. 11, p. 4; Doc. 11-1, p. 6; Doc. 11-2).

At Poke’s original sentencing in May 2005, the court calculated the applicable advisory

guideline for Count 2 at a range of 292-365 months, with a mandatory consecutive minimum

sentence of 60 months for Count 3. (Doc. 11, p. 4; Doc. 10-1, p. 13). This calculation included a

career offenderenhancement under USSG §4B1.1 based on Poke’s 1995 Illinois drug conviction

qualifying as a “controlled substance offense,” and a 1998 aggravated battery conviction, which

raised his total offense level from 30 to 37. (Doc. 10-1, p. 6). However, that level was lowered to

35 for acceptance of responsibility. Id.; (Doc. 11, p. 4). Poke’s original criminal history level of

IV was raised to VI as a result of his career offender designation. (Doc. 10-1, p. 9). Poke’s sentence

was imposed after United States v. Booker, 542 U.S. 220 (2005), rendered the sentencing

guidelines advisory rather than mandatory. (Doc. 11-5, pp. 16, 27-30).

The statutory sentencing range for Count 2 under 21 U.S.C. §841(b)(1)(B)(ii)(2005) was

10 years to life, enhanced because of Poke’s Illinois drug conviction. (Doc. 10-1, pp. 1, 13;

Doc.11-5, p. 29). In the absence of a prior “felony drug offense,” the unenhanced statutory range

would have been 5-40 years. 21 U.S.C. §841(b)(1)(B)(ii) (2005).

GROUNDS FOR HABEAS RELIEF

Poke argues that his Illinois drug conviction was improperly used to enhance both his

statutory sentencing range under 21 U.S.C. §841(b)(1)(B)(ii), and his guideline sentencing range

under USSG §4B1.1. He asserts that after application of the categorical analysis set forth in Mathis

and as applied in Elder, the Illinois statute of his conviction no longer constitutes a “felony drug

offense” under the federal statute or a “controlled substance offense” under the guidelines

(§ 4B1.2), because of the overbreadth of the Illinois statutory drug definitions when compared with

the federal Controlled Substances Act. (Doc. 9, pp. 25-35).

Poke urges that he has thedue processright to be sentenced based on accurate information,

therefore Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013),should not operate to defeat his

claim. (Doc. 9, pp. 8-20). Additionally, he claims that to deny habeas relief under Mathis to a

petitioner sentenced post-Booker while allowing such relief for a pre-Booker sentence amounts to

an equal protection violation. (Doc. 9, p. 24).

MOTION TO DISMISS

Respondent argues that Poke’s case falls squarely within the rule set forth in Hawkins, and

is subject to dismissal because Poke’s post-Bookersentencewas within the statutory range of both

the enhanced (10 years to life) and unenhanced (5-40 years) provisions of §841(b)(1)(B)(ii).

(Doc.11, pp. 7-8).

The motion also “expressly preserves the Department of Justice’s newly-established

position that a prisoner . . . who has already unsuccessfully sought relief under §2255 cannot

establish his eligibility to file a habeas petition under the saving clause by relying on a later-issued

decision of statutory interpretation.” (Doc. 11, p. 6, n.2). 2 As Respondent acknowledges, this

position is currently foreclosed by binding Seventh Circuit precedent as set forth in In re

Davenport, 147 F.3d 605, 608-12 (7th Cir. 1998). Id.

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). Thus, aside from the direct appeal process, a prisoner who has been convicted in federal

court is generally limited to challenging his conviction and sentence by bringing a motion pursuant

to 28U.S.C. §2255 in the court which sentenced him. A Section2255 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 also normally limited to only one challenge of his conviction

and sentence under Section 2255. He or she may not file a “second or successive” Section 2255

motion unless a panel of the appropriate court of appeals certifies that such motion contains either

(1) 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) “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was

2The Court recognizes the preservation of this argument but sees no need to address it because Hawkins

is dispositive of Poke’s claim.

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 Section2241. Specifically, 28 U.S.C. §2255(e) contains a

“savings clause” which authorizes a federal prisoner to file a Section 2241 petition where the

remedy under Section2255 is “inadequate or ineffective to test the legality of his detention.”

28U.S.C. §2255(e). See Hill v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (“‘Inadequate or

ineffective’ means that ‘a legal theory that could not have been presented under §2255 establishes

the petitioner’s actual innocence.’”) (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002);

see also 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.” In other words, “there must be

some kind of structural problem with section 2255 before section 2241 becomes available.”

Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).

Following Davenport,a petitioner must meet three conditions in order to trigger the savings

clause. First, he must show that he relies on a new statutory interpretation case rather than a

constitutional case. Second, he must show that he relies on a decision that he could not have

invoked in his first Section2255 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 Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Rios, 696 F.3d

638, 640 (7th Cir. 2012).

ANALYSIS

This Court need not reach the ultimate merits of Poke’s argument that the Illinois drug

statute (720 ILCS 570/401 (1995)) criminalizes a broader swath of conduct than does the federal

statute or the sentencing guidelines. Under Hawkins, he 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 fails tosatisfy the requirements of Section2255(e)’s savings clause to bring

his Mathisclaim in a Section 2241 petition.

Some errors can be raised on direct appeal but not in a collateral attack in a Section 2255

motion or a Section 2241 petition. A claim that a defendant’s guideline 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 Hawkinsthat 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 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 enhancement and sentencing range that applied to Poke was advisory, not mandatory,

because he was sentenced in May 2005, several months after the January 2005 Booker decision.

The court applied the enhanced statutory maximum of 10 years to life when sentencing Poke on

Count 2. Without counting Poke’s prior conviction as a “felony drug offense,” the unenhanced

statutory range would have been 5-40 years. 21 U.S.C. §841(b)(1)(B)(ii) (2005). Poke’s 250-

month sentence for his Count 2 drug offense is well below the maximum 40-year (480 month) cap

that would have applied if the court had disregarded his previous drug conviction. The same is true

for his aggregate 310-month sentence, which includes the additional 60-month sentence for his

Count 3 firearm offense (which was mandated by statute to be imposed consecutively to his drug

sentence). See 18 U.S.C. § 924(c)(1)(D)(ii) (2005).

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 limit. Poke’s sentence did not exceed the unenhanced statutory 40-year

maximum.3 Therefore, his Petition does not meet the criteria to bring his claim within

Section2255(e)’s savings clause, even if the sentencing court was mistaken in applying the career

offender enhancement (USSG §4B1.1, §4B1.2) to yield an advisory sentencing range of 292-365

months.

There is no meaningful way to distinguish Hawkins from this case. The issue in Hawkins

was the same as the career-offender guideline issue raised here by Poke: the use of a prior

conviction that would allegedly no longer qualify as a predicate for a guidelines 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 dictates the

dismissal of this action.Poke’s claimed error in the enhancement of his statutory sentencing range

under 21 U.S.C. §841 does not alter the analysis, because his ultimate sentence was within the

3Respondent agrees, for the sake of argument, to the application of the unenhanced statutory range for this

comparison, without conceding that the statutory enhancement or the career offender guideline

enhancementwas in error. (Doc. 11, p. 8, n.3).

statutory range even without the enhancement.

Poke’s additional arguments are not persuasive. First, he asserts that his sentence violates

his due process right to be sentenced based on accurate information. (Doc.9, pp. 8-20). According

to Poke, his sentence was based on inaccurate information because his Illinoisconviction no longer

qualifies as a predicate crime for the career offender enhancement under the guidelines or the

statute. The Court does not agree with Poke’s reading of the cases he cites in support of this

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

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

States v. Tucker, 404 U.S. 443, 447 (1972) and Townsend v. Burke, 334 U.S. 736 (1948). ButPoke

misunderstands the scope of that right.

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

Townsend, the sentencing court mistakenly thought that the defendant had been convicted on

several charges when he in fact had been acquitted or the charges had been dropped. Townsend,

334 U.S. at 740. 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, 404 U.S. at 447. In Welch, the sentencing court thought that 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. Poke 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.Contrary to Poke’s argument (Doc. 9, pp. 14-

16),Narvaez v. United States, 674 F.3d 621 (7th Cir. 2010),does not support his position. Narvaez

was granted habeas relief because the court found that his pre-Bookersentence which erroneously

labeled him a career offender amounted to a miscarriage of justice; the Narvaez court explicitly

did not decide the due process claim raised therein. Narvaez, 674 F.3d at 627, n.10, 630.Because

Poke’s sentencing occurred post-Booker, the rule in Hawkins (not Narvaez) applies here.

Further, the Mathisopinion has not “undermined” Hawkinsas Poke claims. (Doc. 9, pp.17-

23). The rule in Hawkinscontinues to be valid in evaluatingwhether Mathismay provide a habeas

petitioner with relief; other factors come into play as well, even for those sentenced pre-Booker.

Finally, Poke’s equal protection argument has no merit – he bases that theory on the claim that

defendants like himself who were sentenced post-Booker under the discretionary sentencing

guidelines are “similarly situated” to those sentenced pre-Booker when the guidelines were

mandatory. (Doc. 9, p. 24; Doc. 13, pp. 9-10). By definition, these two groups of defendants are

plainly not similarly situated,and no further analysis of this claim is necessary.

CONCLUSION

For the reasons set forth above, Respondent’s Motion to Dismiss Petition (Doc. 11) is

GRANTED, and this action under 28 U.S.C. §2241 is DISMISSED with prejudice. The Clerk

of Court isDIRECTEDto close this case and enter judgment accordingly.

IfPoke 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 Poke plans to present on appeal. See

FED. R. App. P. 24(a)(1)(C). If Poke 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 Poke 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: March 9, 2020

Tee out

NANCY J. ROSENSTENGEL -

Chief U.S. District Judge

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