# Poke, Jr. v. Werlich

> District Court, S.D. Illinois · March 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10151703

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** March 9, 2020
- **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
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151703. Public record. Not legal advice.