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