The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WAYNE G. FARLEY,
Petitioner,
v. Case No. 19-CV-871-SPM
T.G. WERLICH,
Respondent.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Petitioner, Wayne Farley (“Farley”), filed a Habeas Petition Under 28 U.S.C. §
2241 challenging his sentence based on the Supreme Court’s decision in Rehaif v.
United States that his current sentence can no longer be justified as it violates the
law of the United States. 588 U.S. __, 139 S. Ct. 2191 (2019). (Doc. 1). On January 16,
2020, Respondent filed a Response to Farley’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Doc. 9). On January 16, 2020, Farley was granted until
March 2, 2020 to file any reply. (Doc. 10). More than eight (8) months has elapsed
since that deadline and the Court has received no further communication from
Farley. According to the Bureau of Prisons, Farley has been transferred from
Greenville FCI and is currently residing in Chicago RRM with an anticipated release
date in early 2021; however, Farley has not updated the Court as to any change of
address. Additionally, mail to petitioner at Greenville FCI was returned on October
26, 2020 as undeliverable. (Doc. 12).
Relevant Facts and Procedural History
On July 15, 2014, Farley was charged in an indictment with a single violation
of 18 U.S.C. § 922(g)(1). (Doc. 1). The charge was predicated on an incident that
occurred on May 28, 2014 when defendant was approached by police in Rockford,
Illinois at a time when he had two firearms in his possession. (Doc. 9-1). At the time
of this incident, defendant had previously been convicted of five felony offenses, and
one misdemeanor, in Illinois Circuit Courts, to wit: (i) On or about January 9, 2006,
in case number 2005CF796 in the Circuit Court of Winnebago County, Illinois,
defendant was convicted of sale of a firearm to a felon and was sentenced to 30 months
probation and 90 days in jail; (ii) On August 31, 2006, in case number 2006CF2575
in the Circuit Court of Winnebago County, Illinois, defendant was convicted of
delivery of a controlled substance and was sentenced to 4 years in prison; (iii) On
September 13, 2006, in case number 2006CF2561 in the Circuit Court of Winnebago
County, Illinois, defendant was convicted of being a felon in possession of a firearm
and was sentenced to 12 months conditional discharge and 140 days in jail; (iv) On
March 9, 2009, in case number 2008CF83 in the Circuit Court of Ogle County, Illinois,
defendant was convicted of residential burglary and was sentenced to 5 years in
prison; (v) On March 10, 2009, in case number 2007CF4532 in the Circuit Court of
Winnebago County, Illinois, defendant was convicted of felony theft and was
sentenced to 3 years in prison; and, (vi) On August 27, 2012, in case number
2012CF753 in the Circuit Court of Winnebago County, Illinois, defendant was
conviction of obstructing identification, a misdemeanor and was sentenced to 12
months conditional discharge and 140 days in jail. Id.
On January 13, 2015, Farley entered into a guilty plea to the charge against
him via a written plea agreement.1 Id. Although the maximum sentence was 10 years
imprisonment, Farley and the government agreed that his base offense level would
be 24 and that his criminal history points equaled 15, which is Category VI. Id. Farley
and the government also agreed that the anticipated advisory sentencing range would
be 92 to 115 months, which equates to 7.66 years and 9.58 years. Id.
The plea agreement contained the following waiver of appellate and collateral
rights:
“Defendant further understands he is waiving all appellate issues
that might have been available if he had exercised his right to trial.
Defendant is aware that Title 28, United States Code, Section 1291, and
Title 18, United States Code, Section 3742, afford a defendant the right
to appeal his conviction and sentence imposed. Acknowledging this,
defendant knowingly waives the right to appeal his conviction, any pre-
trial rulings by the Court, and any part of the sentence (or the manner
in which that sentence was determined), including any term of
imprisonment and fine within the maximums provided by law, and
including any order of forfeiture, in exchange for the concessions made
by the United States in this Agreement. In addition, defendant also
waives his right to challenge his conviction and sentence, and the
manner in which the sentence was determined, in any collateral attack
or future challenge, including but not limited to a motion brought under
Title 28, United States Code, Section 2255. The waiver in this paragraph
does not apply to a claim of involuntariness or ineffective assistance of
counsel, not does it prohibit defendant from seeking a reduction of
sentence based directly on a change in the law that is applicable to
defendant and that, prior to the filing of defendant’s request for relief
has been expressly made retroactive by an Act of Congress, the Supreme
Court, or the United States Sentencing Commission. (Doc. 9-1, p. 13).
1 Defendant entered into plea agreement in the United States District Court for the Northern District of Illinois
on January 14, 2015 in cause number 14-CR-50033.
On April 20, 2015, the Court sentenced Farley to 92 months imprisonment.
(Doc 9-1, p. 3). Farley did not appeal his conviction. Id. Farley filed a claim for relief
under28 U.S.C. § 2255, contending that he was entitled to resentencing as a result of
the consideration of his prior burglary conviction in computing his sentencing
guidelines range; however, it was dismissed as untimely. 2 Id.
Legal Analysis
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). As such, 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 28 U.S.C.
§ 2255 in the court which sentenced him. Id. at 694. 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 usually limited to
only one challenge of his conviction and sentence under Section 2255, and may not
file a second or successive Section 2255 motion, unless a panel of the appropriate court
of appeals certifies that such a 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” (actual innocence); or, (2) “a new
2 Petitioner, Wayne G. Farley, filed his Petition for Relief from Judgment in the United States District Court for
the Northern District of Illinois, to wit: 16CV50286.
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255 (emphasis added).
I. Waiver
Ostensibly relying on Rehaif v. United States, 588 U.S. __, 139 S. Ct. 2191 (2019),
Farley argues that his current sentence can no longer be justified because it violates
the law of the United States. (Doc. 1). On June 1, 2019, the Supreme Court held in
Rehaif that [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, 588 U.S. __, 139 S. Ct. 2191 (2019). In so holding; however, the Court
declined to express what precisely the Government must prove to establish a
defendant’s knowledge of status in respect to other § 922(g) provisions not at issue.
Id. Rehaif did not hold that § 922(g) convictions were unconstitutional or otherwise
invalid. Id. Instead, the Supreme Court interpreted the statute and held that the
correct interpretation of § 922(g) included the element that an individual must know
not only that he possessed the firearm or ammunition, but also that he belonged to
the relevant category of people barred from possessing a firearm. Id.
There is no doubt that a plea agreement may include a valid waiver of the right
to appeal and to file a collateral attack, and that such waivers are generally
enforceable, with limited exceptions. Solano v. United States, 812 F.3d 573 (7th Cir.
2016). The limited exceptions are where the plea agreement itself was involuntary,
the defendant argues ineffective assistance of counsel with regard to the negotiation
of the plea, the sentencing court relied on a constitutionally impermissible factor such
as race, or the sentence exceeding the statutory maximum. Keller v. United States,
657 F.3d 675 (7th Cir. 2011).
None of those factors are present in the instant case. First, Farley is not
contesting that the plea was involuntary. Second, Farley does not argue ineffective
assistance of counsel with regard to negotiating his plea. Third, Farley does not
allege that the sentencing court relied on a constitutionally impermissible factor,
such as race. Finally, Farley does not argue that his sentence exceeded the statutory
maximum. To the contrary, in his petition Farley seeks relief under 2241 and the
recent United States Supreme Court decision in Rehaif v. United States, 588 U.S. __,
139 S. Ct. 2191 (2019); (Doc. 1).
The waiver in this case includes another exception in that it does not “prohibit
defendant from seeking a reduction of sentence based directly on a change in the law that
is applicable to defendant and that, prior to the filing of defendant’s request for relief,
has been expressly made retroactive by an Act of Congress, the Supreme Court, or the
United States Sentencing Commission. (Doc. 9-1). However, Farley’s reliance on Rahaif
is mistaken. Contrary to his assertions, Farley was not convicted nor is he being punished
for a crime that does not exist according to law.
In the plea agreement, Farley acknowledged his prior criminal history. (Doc.
9-1). In fact, pages 6-7 of the agreement set forth subparagraphs i through vi, which
detail five (5) prior felony offenses, 3 of which resulted in 4, 5 and 3 year periods of
prison respectively. Id. With five prior felony convictions, four of which involved
twelve (12) year sentences in the Illinois Department of Corrections3, Farley cannot
plausibly argue that he did not know he was a convicted felon and/or that his
maximum punishment exceeded one (1) year. See United States v. Williams, 946 F.3d
968 (7th Cir. 2020). Furthermore, Farley has not contended that he would not have
pled guilty had he known about the knowledge requirement imposed in Rehaif.
Because Rehaif did not announce a new rule of constitutional law and merely
resolved a question of statutory interpretation, there is no exception at play where the
waiver is not applicable. Rehaif provides no relief in this specific instance. Rehaif does
not require the Government to prove that it knew felons were prohibited from possessing
firearms, merely that a person knew they were part of a class of persons designated in
Section 922(g), including felons. 139 S.Ct. at 2196
Farley knew of his felon status at the time of the plea and his claim is precluded
as a result of the collateral review waiver to which he agreed as part of his plea
agreement. His claim does not fall into one of the “few and narrow” grounds for not
enforcing the voluntary and effectively counseled waiver of direct appeal or collateral
review. United States v. Campbell, 813 F.3d 1016 (7th Dir. 2016).
II. Savings Clause
Under very limited circumstances, it is possible for a prisoner to challenge his
federal conviction or sentence under Section 2241. Specifically, 28 U.S.C. § 2255(e)
contains a “savings clause” which authorizes a federal prisoner to file a § 2241 petition
where the remedy under § 2255 is “inadequate or ineffective to test the legality of his
3 Defendant was sentenced to 12 years incarceration. This Court does not know the amount of credit
received or the actual time served.
detention.” 28 U.S.C. 28 U.S.C. § 2255(e). See Hill v. Werlinger, 695 F.3d 644 (7t Cir.
2012).
The Seventh Circuit has examined the savings clause, and has held that “a
procedure for postconviction relief can be fairly termed inadequate when it is so
configured 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 re Davenport, 147 F.3d 605 (7th Cir. 1998). 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 (7th Cir. 2015).
Following Davenport, a petitioner must meet three conditions in order to
trigger the savings clause. See Davenport, 147 F.3d at 611. First, he must show that
he relies on a new statutory interpretation case rather than a constitutional case.
Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013. Second, he must show that he relies
on a decision that he could not have invoked in his first Section 2255 motion and that
case must apply retroactively. Id. at 586. Third, 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. Id.
In the instant case, a quick perusal clearly shows that Davenport has not been
satisfied to invoke the savings clause. Although Rehaif v. United States, 588 U.S. __,
139 S. Ct. 2191 (2019) was a case of statutory interpretation and was decided in 2019
well after his plea in 2015, the third factor is dispositive. Farley has not and cannot
demonstrate that there has been a fundamental defect in his conviction grave enough
to be a miscarriage of justice. As set forth infra, Farley has a rather extensive criminal
history and as a result of the plea agreement, received a sentence at the low end of
the sentencing guidelines recommendation.
With respect to the third factor, the Seventh Circuit has described a
miscarriage of justice as “the possibility that the convictions hinged on conduct
Congress never intended to criminalize.” Kramer v. Olson, 347 F.3d 214 (7th Cir.
2003). The third Davenport requirement is satisfied by demonstrating “so
fundamental a defect in [a] conviction as having been imprisoned for a nonexistent
offense.” 147 F.3d at 611. A miscarriage of justice may also occur where a defendant
is sentenced under an erroneous mandatory sentencing range. Hawkins v. U.S., 706
F.3d 820 (7t Cir. 2013).
Farley does not argue that he was convicted of a nonexistent offense or that he
is innocent of the offense to which he pled guilty. He entered into the plea agreement,
which specified his criminal history, and he was sentenced accordingly. (Doc. 9-1).
That does not demonstrate a miscarriage of justice.
III. Change of Address
On October 6, 2020, this case was reassigned to this Judge and notice was sent
to Farley at Greenville FCI. (Doc. 11). On October 26, 2020, the notice was returned
as undeliverable, and the envelope stated, “Return to Sender” “Refused” and “Unable
to Forward”. (Doc. 12). According to a search of the Federal Bureau of Prisons (“BOP”)
inmate locator, Farley is now with the RRM Chicago Residential Reentry Office. See
BOP Inmate Locator, (last visited on November 13, 2020),
https://www.bop.gov/inmateloc/
Farley has not notified this Court of his move. It is his duty to notify the court
of a change of address. This Court reached out to Farley on January 16, 2020 granting
him until March 2, 2020 to file a Reply. (Doc. 10). There has been no communication
with Farley since that time. Accordingly, he has also failed to prosecute this matter.
Conclusion
Farley’s Petition for writ of habeas corpus under 28 U.S.C. § 2241 (Doc. 1), is
DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly and to provide a
copy of this Memorandum and Order to the United States Attorney for this district.
It is not necessary for Petitioner to obtain a certificate of appealability from
this disposition of his § 2241 Petition. Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000).
If Petitioner wished to appeal, he may file a notice of appeal with this Court within
60 days of the entry of judgment. Fed. R. App. P. 4(a)(1)(B)(iii). A proper and timely-
filed motion pursuant to Federal Rule of Civil Procedure 59(e) may toll the 60-day
appeal deadline. A Rule 59(e) motion must be filed no more than 28 days after the
entry of the judgment, and this 28-day deadline cannot be extended.
A motion for leave to appeal in forma pauperis must identify the issues
Petitioner plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If Petitioner
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 857 (7th Cir. 1999); Sloan v. Lesza, 181 F.3d 857 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464 (7th Cir. 1998).
IT IS SO ORDERED.
DATED: November 16, 2020
s/Stephen P. McGlynn
STEPHEN P. McGLYNN
United States District Judge