Opinion

Lumbert v. Sproul

Court
District Court, S.D. Illinois
Filed
Nov 3, 2020
Cited by
0 cases
Authority
More cited than 21.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL P. LUMBERT, )

#07433-090, )

)

Petitioner, )

)

vs. ) Civil No.20-cv-00466-NJR

)

DAN SPROUL, )

)

Respondent. )

MEMORANDUM AND ORDER

ROSENSTENGEL, ChiefJudge:

This Court dismissed Michael P. Lumbert’s Petition for a Writ of Habeas Corpus under

28U.S.C. § 2241 on preliminary review. (Doc. 4). Citing Federal Rule of Civil Procedure 59(e),

Lumbert then filed a Motion to Vacate(Doc. 6).

Lumbert’s motion was filed within 28 days of the entry of judgment and will therefore be

considered under Rule 59(e). Banks v. Chicago Board of Education, 750 F.3d 663, 666 (7th Cir.

2014). Rule 59(e) allows a court to alter or amend a judgment in order to correct manifest errors

of law or fact or to address newly discovered evidence. Obriecht v. Raemisch, 517 F.3d 489, 494

(7th Cir. 2008). However, “[r]econsideration is not an appropriate forum for rehashing previously

rejected arguments.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270

(7th Cir. 1996).

Lumbert pleaded guilty to one count of possession with intent to distribute crack cocaine

in violation of 21 U.S.C. § 841(a)(1) in the Western District of Wisconsin. United States v.

Lumbert, Case No. 3:11-cr-0066 (“Criminal Case”). In December 2011, he was sentenced to 188

months’ imprisonment to be followed by a six-year term of supervised release. (Criminal Case,

Doc. 22).

The Petition (Doc. 1) alleged that Lumbert was subject to an enhanced sentence of thirty

years because of a prior conviction for a felony drug offense pursuant to 21 U.S.C. § 851. Citing

Mathis v. United States, 136 S. Ct. 2243 (2016), and United States v. Elder, 900 F.3d 491 (7th Cir.

2018), Lumbert argued that none of his prior Wisconsin drug convictions qualifiesas a felony drug

offense, and he was not properly subject to the enhanced penalty.

This Court dismissed the Petition because Lumbert could not satisfy the third of the

Davenport conditions for bringing a § 2241 Petition, because he could not show a miscarriage of

justice. The Court reasoned that, although his possible maximum term of imprisonment was raised

from 20 years to 30 years because of the § 851 enhancement, he suffered no harm because his

sentenceof 188 months imprisonment was within the unenhanced 20 year maximum.

In his Rule 59 Motion, Lumbert argues that the Court overlooked thefact that he was also

sentenced to serve a 6-yearterm of supervised release. Without the § 851 enhancement, he would

have been subject to a mandatory minimum term of supervised release of only 3 years; the

enhancement for a prior conviction raised the statutory mandatory minimum term of supervised

releaseto 6 years.

Lumbert’s point is well-taken. The Court’s order dismissinghis Petition failed to consider

that the § 851 enhancement also raised the mandatory minimum term of supervised release.

Although raising the possible maximum term of imprisonment did not result in a longer sentence

because the sentence he received was within the unenhanced maximum, raising the mandatory

minimum term of supervisedrelease potentially resulted in a longer term.On the record as it now

stands, the Court cannot conclude that it is plainly apparent that Lumbert is not entitled to habeas

reliefas to his term of supervised release.

For these reasons, the Court concludes that the Petition survives preliminary review under

Rule 4 and Rule 1(b) as to the term of supervised release, but not as to the term of imprisonment,

and a response shall be ordered.

Accordingly, Petitioner Michael P. Lumbert’s Motion to Vacate (Doc. 6) is GRANTED.

The Order dismissing the case on preliminary review (Doc. 4) and Judgment (Doc. 5) are

VACATED. The Clerk of Court shall reopen the case.

Respondent shall answer or otherwise plead on or before December 1, 2020. This

preliminary order to respond does not, of course, preclude the Government from raising any

objection or defense it may wish to present. Service upon the United States Attorney for the

Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois, shall constitute

sufficient service.

Lumbert is ADVISED of his continuing obligation to keep the Clerk (and each opposing

party) informed of any change in his whereabouts during the pendency of this action. This

notification must be done in writing and no later than 7 days after a transfer or other change in

address occurs. Failure to provide notice may result in dismissal of this action. See FED. R. CIv. P.

41(b).

IT IS SO ORDERED.

DATED: November 3, 2020 7 (Coenen J

“dv

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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