# Rickett v. Werlich

> District Court, S.D. Illinois · September 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10152688

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** September 28, 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
DOMINIC RICKETT, # 23439-045, )
)
Petitioner, )
)
vs. ) Case No. 19-cv-1011-NJR
)
T.G. WERLICH, )
)
Respondent. )
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Petitioner Dominic Rickett, an inmate in the Bureau of Prisons currently incarcerated at
FCI-Greenville, filed this action in September 2019. His Amended Petition for Writ of Habeas
Corpus under 28 U.S.C. §2241 (Doc. 10)is nowbefore the Court.Rickettinvokes Rehaif v. United
States, __ U.S. __, 139 S. Ct. 2191 (2019), as the basis for his collateral attack and request for
immediate release.Respondent answered the Petition(Doc.13),and Rickett replied (Doc. 18).
Rickett pled guilty to being a felon in possession of ammunition in violation of 18 U.S.C.
§922(g)(1) in the Western District of Missouri, Case No. 11-cr-181-DW-1 (“criminal case”) and
is serving a 120-month sentence. (Doc. 13, p. 1, Doc. 13-1; Docs. 41, 57 in criminal case).
RELEVANT FACTS AND PROCEDURAL HISTORY
In August 2011, Rickett was indicted for unlawfully possessing ammunition as a felon
based on a January 2011 arrest where a firearm magazine containing 9mm ammunition was found
on his person. (Doc. 13, p. 2; Doc. 13-2). The indictment did not specifically allege that Rickett
knew he was a convicted felon at the time he possessed the ammunition. Rickett entered an open
plea of guilty on March 15, 2012, and was advised that under Section 924(e), he faced a sentence
of 15 years to life if the court determined he was an armed career criminal. (Doc. 13-3, pp. 3-4).
Rickett admitted on the record that he had more than one prior state felony conviction at the time
he possessed the ammunition. Id.at 9-10.
The Presentence Investigation Report (PSR) found that Rickett had been convicted of six
felonies before his federal possession offense. (Doc. 13, p. 4; Doc. 14-1,pp.8-11). Hehadreceived
a 3-year suspended sentence for each conviction, and spent only 60 days in custody. (Doc. 13,

p.4). In September 2012, Rickett was sentenced to 180 monthson the instant offense. He appealed,
arguing that two of his prior burglary convictions should not be counted as separate crimes for
sentence enhancement purposes, but the Eighth Circuit affirmed his sentence. United States v.
Rickett, 516 F. App’x 606 (8th Cir. 2013).
Rickett’s first motion under 28 U.S.C. §2255 was unsuccessful. (Case No. 14-cv-650-DW
(W.D. Mo.)). However, he was permitted to file a successive Section 2255 motion raising Johnson
v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), which resulted in the district court vacating
the 180-month sentence and resentencing him to 120 months. (Doc. 13, p. 5; Docs. 50, 57 in
criminal case).

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 Section 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 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” Section2255
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

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.”1
Following Davenport and its progeny, the Seventh Circuit has enunciated a three-part test

1The Seventh Circuit’s interpretation of § 2255(e)’s savings clause is in line with a majority of the Circuit
Courts of Appeals’ jurisprudence on this issue, and aligns with that of the Eighth Circuit where Rickettwas
convicted. See, e.g.,Abdullah v. Hedrick,392 F.3d 957, 960-63 (8th Cir. 2004); In re Dorsainvil, 119 F.3d
245, 251 (3d Cir. 1997); Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997); In re Jones, 226
F.3d 328, 333-34 (4th Cir. 2000); Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001);
Martin v. Perez, 319 F.3d 799 (6th Cir. 2003); Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir. 2003); see
alsoWright v. Spaulding, 939 F.3d 695, 699 (6th Cir. 2019) (collecting cases).
for determining whether Section 2255 is inadequate or ineffective, thus triggering the savings
clause:
(1): the federal prisoner must seek relief based on a decision of statutory
interpretation (as opposed to a decision of constitutional interpretation, which the
inmate could raise in a second or successive § 2255 motion);
(2): the statutory rule of law in question must apply retroactively to cases on
collateral review andcould not have been invoked in a first § 2255 motion; and
(3): a failure to afford the prisoner collateral relief would amount to an error “grave
enough” to constitute “a miscarriage of justice.”
Worman v. Entzel, 953 F.3d 1004, 1008 (7th Cir. 2020) (emphasis in original) (citing Montana v.
Cross, 829 F.3d 775, 783 (7th Cir. 2016); Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)).
See also Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Caraway, 719 F.3d 583,
586 (7thCir. 2013).Thus, “there must be some kind of structural problem with section 2255 before
section 2241 becomes available. In other words, something more than a lack of success with a
section 2255 motion must exist before the savings clause is satisfied.” Webster v. Daniels, 784
F.3d 1123, 1136 (7th Cir. 2015).
ANALYSIS
On June 21, 2019, the Supreme Court held in Rehaif:
[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must
prove both that the defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from possessing a firearm. We
express no view, however, about what precisely the Government must prove to
establish a defendant’s knowledge of status in respect to other § 922(g) provisions
not at issue here.
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (defendant’s conviction for illegal possession
of firearm and ammunition was based on his status of being illegally or unlawfully in the United
States; reversing/remanding because the Government had not been required to prove at trial that
defendant knew he was unlawfully in the country). The opinion abrogated nationwide precedent
in all eleven circuit courts of appeal which had held that knowledge was not an element that the
prosecution must prove to obtain a conviction.
In Rickett’s view, his “criminal liability … remains unresolved” in light of Rehaif.
(Doc.10, p. 2). This, of course, is incorrect – Rickett’s conviction still stands unless and until a
court rules otherwise. The Rehaifdecision itself did not undo his conviction or render his criminal

liability “unresolved.” Rickett states he does not seek to have his conviction or sentence vacated,
but appears to assert that his indictment failed to state an offense because it did not include the
element that he knew he “belonged to the relevant status, that barred him from possessing a
firearm,” thus his custody is unlawful. Id.In addition to Section 2241, he invokes several sections
oftheCode of Federal Regulations which he believes authorizes him to seek remedies against the
United States Department of Justice and other federal officials including immediate release.
(Doc.10, pp. 1-3). Rickett also argues for the first time in his Reply that a defendant’s knowledge
of his felon status must be proven with ATF Form 4473 or Form 6, and this was not done in his
case. (Doc. 18, pp. 1-8).

This Court already informed Rickett that his claim will be evaluated under 28 U.S.C.
§2241 and the savings clause of 28 U.S.C. §2255(e), and that itdoesin factamount toa challenge
to his conviction regardless of howhedescribes this action. (Doc. 12, p. 2). Respondent concedes
that Rickett’sRehaif claim satisfies the first and second prongs of the savings clause test –Rehaif
is a statutory interpretation case, and it sets forth a new substantive rule narrowing the scope of
Section 922(g), which applies retroactively. (Doc. 13, pp. 17-18). Further, this new substantive
rule was previously unavailable to Rickett because it would have been futile to raise his claim in
the Eighth Circuit under pre-Rehaif precedent. Id. However, Respondent asserts Rickett cannot
meet the third Davenport factor – a showing that an error in his conviction amounts to a
miscarriage of justice – because he was not convicted of a crime of which he was innocent.
(Doc.13, pp. 19-25).2
It is true that Rickett’s indictment did not allege that he knew he was a convicted felon at
the time he possessed the ammunition. This was consistent with the pre-Rehaif controlling
precedent at the time in the Eighth Circuit. See United States v. Thomas, 615 F.3d 95, 899 (8th Cir.

2010) (government was not required to prove that Section 922(g) defendant knew of his disabling
status);United States v. Kind, 194 F.3d 900, 907 (8th Cir. 1999)(same).Cases following the Rehaif
decision make clear, however,that this Court can and should consider other evidence in the record
to determine whether it establishes the knowledge element set forth in Rehaif. See, e.g., United
States v. Maez, 960 F.3d 949 (7th Cir. 2020); United States v. Williams,946 F.3d 968, 973-74 (7th
Cir. 2020).See also Bousley v. United States, 523 U.S. 614 (1998).
In Rickett’s case, the record contains ample evidence to establish that he knew he had
previously been convicted of felony offenses when he pled guilty to the felon-in-possession
charge. During his change of plea hearing when the court questioned Rickett about the factual

basis for the offense, headmitted that when he was searched and found to have bullets on him, he
had a previous felony conviction for fleeing and another conviction for two counts of burglary.
(Doc. 13-3, pp. 9-10). Rickett acknowledged that he understood his prior convictions were the
reason it was illegal for him to possess firearms or ammunition. Id.Rickett had pled guilty to those
prior felony offenses as well; he was sentenced to concurrent terms of three years in prison with
thesentences suspended while heserved shock time and probation. (Doc. 13-3, p. 11; Doc. 13-5).
Respondent points out that the state court records indicate Rickett was advised he faced a potential

2Respondent also raises the argument, in order to preserve it,that an inmate who previously challenged his
conviction under 28 U.S.C. §2255 is barred from using the “savings clause” to raise a later challenge under
Section 2241. (Doc. 13, pp. 7-15). The Court finds it unnecessary to address the merits of this argument
because, as Respondent acknowledges, it is contrary to controlling Seventh Circuit precedent. Id.at 15.
maximum sentence of over one year when he pled guilty to those felonies, as required by Missouri
law, providing additional evidence he knew of his convicted felon status. (Doc. 13, pp. 21-24).
The Seventh Circuit referenced similar state law requirements in guilty plea proceedings to support
its conclusion that the defendant could not plausibly argue he was ignorant of his status as a felon
who could not legally possess a firearm. United States v. Payne, 964 F.3d 652, 656 (7th Cir. 2020).

Additionally, Rickett’s Presentencing Report listed each of his previous felonies, and he
did not deny having committed those crimes.3(Doc. 14-1, pp. 8-11).Indeed, nowhere in Rickett’s
habeas pleadings does he dispute that he was a convicted felon when he possessed the ammunition.
Further, he does not claim that he would not have pled guilty if the Rehaif standard had applied to
require the Government to prove his knowledge of his convicted felon status.
The Seventh Circuit has made it clear that a person challenging the validity of his/her guilty
plea based on Rehaif “has the burden to show there is “a reasonable probability that he would not
have pleaded guilty if he knew of Rehaif,” United States v. Dowthard, 948 F.3d 814, 817-18 (7th
Cir. 2020) (quoting Williams, 946 F.3d at 973). Like the defendant in Dowthard, Rickett has set

forth no facts or argument to convince the Court that he didnot know he was a convicted felon at
the time of the offense or of his plea. Nor has he shown a reasonable probability that he would
have chosen to go to trial if the Rehaif rule had applied. While Rickett had not previously served
a full year in prison for his earlier offenses because his 3-year sentences were suspended, he does
not argue that he was unaware those convictions were punishable by more than a year in prison,
nor would such a claim be plausible based on the record in this case.
Finally, because Rickett did not raise his argument relating to the ATF forms in his Habeas

3Rickett’s objection to the PSR focused on the counting of two burglaries committed close in time to one
another as separate offenses for sentence-enhancement purposes, rather than as a single offense. (Doc. 13-
4, pp. 3-7; Doc. 14-1, p. 7, ¶26, p. 10, ¶36).
Petition and waited to present them until he filed his reply brief, the Court is not required to
consider them. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“the district court is
entitled to find that an argument raised for the first time in a reply brief is forfeited”). The argument
lacks merit in any event. The ATF Form 4473 is a document completed by a firearms dealer and
the prospective purchaser to record information about the buyer’s ability to legally possess the

firearm, as well as information on the buyer and the firearm to facilitate tracing if the gun is
involved in a crime. A gun dealer may be subject to sanctions for transferring a firearm based on
information in Form 4473 that the dealer knows or has reason to believe is false. See Shawano
Gun & Loan, LLC v. Hughes,650 F.3d 1070, 1073 (7th Cir. 2011).ATF Form 6 is the Application
and Permit for Importation of Firearms, Ammunition and Implements of War. Neither of these
ATF forms is mentioned in the Rehaifdecision.Rehaifand cases applying it leave no doubt that a
person’s status as a convicted felon may be proven by evidence other than what might appear on
one of theseATFforms.
To summarize, Rickett cannot show that his conviction or sentence for being a felon in

possession of ammunition represents a “miscarriage of justice” that would entitle him to habeas
relief in light of the Rehaifopinion.
CONCLUSION
Dominic Rickett’s Amended Petition for Writ of Habeas Corpus under 28 U.S.C. §2241
(Doc. 10) is DENIED, and this action is DISMISSED with prejudice. His Motion for Immediate
Settlement Conference (Doc. 19) and all other pending motions are DENIED AS MOOT. The
Clerk of Court is DIRECTEDto enter judgment accordingly.
If Rickett 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 Rickett plans to present on
appeal. See FED. R. App. P. 24(a)(1)(C). If Rickett 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 Rickett to obtain a certificate of appealability from this disposition
of his Section 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: September 28, 2020
Tag fone?
NANCY J. ROSENSTENGEL -
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10152688. Public record. Not legal advice.