Hammack v. Werlich

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RANDALL ALLEN HAMMACK,

Petitioner,

v. Case No. 19-CV-00830-SPM

T. G. WERLICH,

Respondent.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Petitioner Randall Allen Hammack filed this pro se Habeas Corpus action

pursuant to 28 U.S.C. § 2241 in July 2019. (Doc. 1). Hammack invokes the decision

of Rehaif v. United States, __ U.S. __, 139 S. Ct. 2191 (2019), as the basis for his claim.

In December 2019, Respondent moved to dismiss the Petition (Doc. 11). Hammack

did not reply.

RELEVANT FACTS AND PROCEDURAL HISTORY

In April 2015, Hammack was indicted in the Western District of Missouri of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 1)

(Doc. 11-1) United States v. Hammack, No. 11-cr-03090-DGK. The indictment alleged

that Hammack had previously suffered a conviction for a crime punishable by a term

of imprisonment exceeding one year (Id.). In May 2012, Hammack pleaded guilty

(Doc. 11-2).1 The plea agreement stated that Hammack had prior felony convictions

at the time of his possession of the firearm, including a conviction for conspiracy to

1 The United States dismissed Count 2 of the Indictment.

distribute methamphetamine in the Western District of Missouri (Id., p. 2).

Hammack signed the agreement and acknowledged that he had read it carefully and

reviewed it with his attorney (Id., p. 16). In his plea colloquy, he also acknowledged

that he had read the factual statements contained in his written plea agreement

involving his conduct, including his previous conviction for conspiracy to distribute

methamphetamine, and acknowledged that the factual statements contained in the

written plea agreement were true (Crim. Doc. 24, pp. 6-7).

Hammack’s presentence investigation report further revealed that he served

more than five years and eight months in custody for the conspiracy to distribute

methamphetamine conviction. The report further stated that he served more than

one year for his conviction of petty theft with a prior in Solano County, California

when his probation was revoked. The report also listed two other felony convictions

for possession of a controlled substance with a potential sentence of incarceration

greater than one year. In December 2012, he was sentenced to 110 months’

imprisonment under § 922(g)(1). During his allocution, Hammack made the following

statement:

I did the next most stupidest thing you could say, I called somebody and

I asked them to bring me a gun. Ten minutes after he came through the

backdoor with a gun, the cop kicked in the front door . . . I apologize to

you. I accept full responsibility for my stupid actions. I accept whatever

sentence you give me and whatever sentence you need . . . I apologize to

the courts. I know my record doesn’t look good. I don’t know what to say

about that. I deserve whatever you do. Thank you.

(Crim. Doc. 41; pp. 12-13).

In July 2015, Hammack filed a motion under 28 U.S.C. § 2255, claiming that

his federal sentence was calculated based upon a state conviction that “was vacated

under California new law Prop 47.” Hammack v. USA, No. 15-cv-03442-RK. In

February 2016, the district court denied that motion, stating that the felony

designation of a conviction itself did not factor into his criminal history calculation

under the United States Sentencing Guidelines.

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 28 U.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” 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 previously

unavailable.” 28 U.S.C. § 2255(h).

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 Section 2241

petition where the remedy under Section 2255 is “inadequate or ineffective to test the

legality of his detention.” 28 U.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 Section 2255 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).

THE REHAIF DECISION

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.

ANALYSIS

Respondent in this case concedes that Hammack’s claim meets the first two

Davenport requirements (Doc. 11, p. 15), but argues he cannot meet the third factor

because of ample available evidence that Hammack knew he had been previously

convicted of several felonies at the time he possessed the firearms.

It is true that Hammack’s indictment did not allege that he knew he was a

convicted felon at the time he possessed the firearms. Cases following the Rehaif

decision make clear, however, that this Court can and should consider certain other

evidence in the record to determine whether it establishes the knowledge element set

forth in Rehaif and if so, the conviction will stand even where the knowledge element

was omitted from the indictment or even the jury instructions. See, e.g., United States

v. Pulliam, _ F.3d _, No. 19-2162, 2020 WL 5247590, at *3 (7th Cir. Sept. 3, 2020);

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). Given his prior convictions, his acknowledgment of those convictions, and his

term of incarceration in excess of one year for two of those convictions, the Court is

satisfied that Hammack knew he was a convicted felon when he possessed the

firearms in the instant case. Hammack therefore cannot demonstrate that the

omission of the Rehaif knowledge element from his indictment and jury instructions

resulted in his being convicted of a nonexistent offense, or of a crime of which he was

innocent. There was no miscarriage of justice in this case, and Hammack is not

entitled to habeas relief under Section 2241 based on the Rehaif decision.

Furthermore, 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, Hammack has set forth no facts

or argument to convince the Court that he would have chosen to go to trial if the

Rehaif rule had applied.

CONCLUSION

Randall Allen Hammack’s Petition for Writ of Habeas Corpus under 28 U.S.C.

§ 2241 (Doc. 1) is DENIED. This action is DISMISSED with prejudice, and the

Clerk of Court is DIRECTED to enter judgment accordingly.

If Petitioner 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. See FED. R.

APP. PROC. 4(a)(1)(B). A motion for leave to appeal in forma pauperis (“IFP”) must set

forth the issues Petitioner plans to present on appeal. See FED. R. APP. PROC.

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. PROC. 3(e); 28 U.S.C. § 1915(e)(2);

Ammons v. Gerlinger, 547 F.3d 724, 725–726 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d

857, 858–859 (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. See FED. R. APP. PROC. 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 Petitioner to obtain a certificate of appealability from

this disposition of his § 2241 Petition. See Walker v. O’Brien, 216 F.3d 626, 638 (7th

Cir. 2000).

IT IS SO ORDERED.

DATED: May 25, 2021

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge