Kareem A. v. USP Thomson

1

Kareem A. Doctor (20597-171), Petitioner, v. USP Thomson, Respondent.

No. 21 C 50117

United States District Court, N.D. Illinois

October 18, 2022

MEMORANDUM OPINION AND ORDER

IAIN DAOHNSTON UNITED STATES DISTRICT JUDGE

Petitioner Kareem A. Doctor, a federal prisoner at USP Coleman II,^[1] brings this pro se habeas corpus action pursuant to 28 U.S.C. § 2241 challenging his 2015 conviction and sentence for being a felon in possession of a firearm under 18 U.S.C. § 922(g). See United States v Doctor, No. 2:13-CR-00811 (D.S.C.). He contends that he is entitled to relief under the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019) and the Fourth Circuit's decision in United States v Wheeler, 886 F.3d 415 (4th Cir. 2018). (Dkt. 1, pg. 6.) For the reasons discussed below, Petitioner cannot satisfy 28 U.S.C. § 2255(e)'s savings clause to bring a § 2241 petition for habeas corpus relief. The petition (Dkt 1.) is denied.

I. BACKGROUND

In 2015, Petitioner pleaded guilty, without a written plea agreement, to a one-count indictment that charged him with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).^[2] (CR. Dkt. 61.) During his plea colloquy, Petitioner admitted that before this offense, he “had been previously convicted of a number of felonies.” (CR. Dkt. 79, pg. 14.)

A pre-sentence investigation report (PSR) was prepared before Petitioner's sentencing. (Dkt. 18-1.) The PSR outlined Petitioner's extensive criminal history, including four different criminal episodes in violation of South Carolina law to which Petitioner pleaded guilty to on December 16, 2004:

(1) possession of cocaine and possession of crack cocaine on December 17, 2002;

(2) strong arm robbery, and assault of a high and aggravated nature (AHAN) on April 2, 2003;

(3) possession with intent to distribute (PWID) cocaine on February 1, 2004; and

(4) assault and battery of a high and aggravated nature (ABHAN), possession with intent to distribute cocaine, and possession of an illegal firearm on May 8, 2004.

Id. at 7-14.^[3] For each of these offenses, Petitioner was sentenced to a prison term not to exceed six years with the exception of his conviction for possession of crack cocaine and cocaine, for which the sentence was not to exceed 5 years. Id.

Petitioner served over 11 months in prison for these crimes, from December 16, 2004, to November 30, 2005, before he was paroled. Id. His parole was revoked on May 9, 2006, and he was imprisoned for another 18 months until he was released on parole on November 30, 2007. Id. His parole expired on May 18, 2010. Id. The PSR indicated that while Petitioner was on parole, he was twice arrested in 2006 for failing to stop for a blue light.^[4] Id. at 9-10. He pleaded guilty to these offenses in 2007 and received a sentence of 18 months. Id.

The PSR calculated a criminal history score of 20 for Petitioner, resulting in a criminal history category of VI. Id. at 12. Additionally, in light of Petitioner's two South Carolina PWID convictions and his South Carolina strong arm robbery conviction,^[5] the PSR determined he was subject to the 15-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Id. at 7-9.

At sentencing, Petitioner did not raise any objections to the PSR's factual statements, and the district court adopted those statements as findings of fact. (CR. Dkt. 78, pg. 2-3.) He also agreed that his PWID convictions qualified as serious drug offenses under the ACCA, and did not raise any challenges as to the recitation of his criminal history. Id. at 4. Indeed, during his colloquy, Petitioner acknowledged his criminal past, stating: “I know I have a record and my record consists of armed robbery, battery and murders.. .I made some mistakes in the past of my life.” Id. at 21. The only objection Petitioner raised at sentencing related to the PSR's finding that his prior strong arm robbery conviction constituted a “violent felony” within the meaning of § 924(e)(1). Id. at 4-6. The sentencing court disagreed with Petitioner's argument and, applying the ACCA, sentenced him to the mandatory minimum prison term of 15 years. Id. at 15, 22-23.

Petitioner appealed, challenging the district court's decision that his prior robbery conviction qualified as a predicate offense under the ACCA. United States v. Doctor, 842 F.3d 306 (4th Cir. 2016). The Fourth Circuit affirmed, Id., and the Supreme Court denied his petition for writ of certiorari. Doctor v. United States, 137 S.Ct. 1831 (2017) (mem.).

Upon conclusion of his direct appeal in 2017, Petitioner sought relief under 28 U.S.C. § 2255. (CR. Dkt. 86.) His pro se § 2255 motion argued that he was not subject to the ACCA because he did not have three “convictions... committed on occasions different from one another” because he was convicted of all three of his ACCA predicate offenses on the same day. The district court denied his § 2255 motion, finding his claim was not only procedurally defaulted, but also plainly refuted by the record which made clear that each of Petitioner's three offenses, committed on April 2, 2003, February 1, 2004, and May 8, 2004, was a separate and distinct criminal episode. (CR. Dkt. 87.) Petitioner appealed, but his appeal was untimely. United States v. Doctor, 740 Fed.Appx. 292 (4th Cir. 2018). The Fourth Circuit therefore dismissed his appeal for want of jurisdiction. Id.

Petitioner now brings the instant § 2241 petition raising two claims. First, Petitioner challenges his felon in possession of a firearm conviction under the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). (Dkt. 1, pg. 6.) Second, citing to the Fourth Circuit's decision in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), he contends that his prior South Carolina drug offenses do not qualify as predicate felonies under the ACCA. Id. For the reasons discussed below, the Court denies his petition.

II. Section 2255(e)'s Savings Clause

“As a general rule, a federal prisoner wishing to collaterally attack his conviction or sentence must do so under § 2255 in the district of conviction.” Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019) (citing Light v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014)). Under § 2255, federal prisoners are limited to only one motion and cannot bring a second motion unless they can satisfy the requirements of § 2255(h) (new evidence of actual innocence or a new, retroactive rule of constitutional law). 28 U.S.C. § 2255(h).

If a prisoner cannot satisfy § 2255(h)'s gatekeeping provisions, a narrow alternative path to relief may be available under § 2255(e) (the “so-called ‘savings clause'”). Santiago v. Streeval, 36 F.4th 700, 705 (7th Cir. 2022). Section 2255(e) allows a prisoner to seek habeas corpus relief under § 2241 in his district of incarceration if the § 2255 remedy is “inadequate or ineffective to test the legality of his detention.” Id. at 705-06 (citing § 2255(e)).

Different circuits evaluate the “inadequate or ineffective” provision differently, and as noted by Respondent, the question of which circuit's law governs the “inadequate or ineffective” inquiry-be it the circuit in which the petitioner was convicted or the circuit in which the petitioner is incarcerated-is unsettled. (Dkt. 17, pg. 6-7); see also Chazen, 938 F.3d at 865 (“Today's opinion avoids resolving the choice-of-law problem ...”) (Barrett, J., concurring). But this Court need not resolve whether the law of the Seventh Circuit (Petitioner's circuit of incarceration) or the Fourth Circuit (Petitioner's circuit of conviction) applies, as Petitioner cannot satisfy either circuit's savings-clause standard to bring a § 2241 claim. The Court will therefore address each circuit's precedent in turn.

I. The Seventh Circuit's Savings Clause Jurisprudence

In addressing the meaning of § 2255(e)'s “inadequate or ineffective” language, the Seventh Circuit has focused on “‘the essential function of habeas corpus' and ‘whether it is impaired .. by the limitations on the use of the remedy provided in [§] 2255.'” Franklin v. Keyes, 30 F.4th 634, 642 (7th Cir. 2022) (quoting In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998)). Because § 2255(h)(2) applies only to constitutional rules and not new rules of retroactive statutory law, the Seventh Circuit applies § 2255(e) to resolve this “glitch” by allowing statutory claims to proceed in a § 2241 proceeding. Brown v. Caraway, 719 F.3d 583, 587 n.1 (7th Cir. 2013) (citing Unthank v. Jett, 549 F.3d 534, 536 (7th Cir. 2008)); see also Chazen, 938 F.3d at 863-64 (Barrett, J., concurring).

Accordingly, to proceed under § 2241 by way of § 2255(e) on a statutory-interpretation claim in the Seventh Circuit, a prisoner must demonstrate: “(1) that he relies on ‘not a constitutional case, but a statutory-interpretation case, so [that he] could not have invoked it by means of a second or successive section 2255 motion;' (2) that the new rule applies retroactively to cases on collateral review and could not have been invoked in his earlier proceeding; and (3) that the error is ‘grave enough.to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding,' such as one resulting in a ‘conviction for a crime of which he was innocent.'” Camacho v. English, 872 F.3d 811, 813 (7th Cir. 2017) (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012); see also Mangine v. Withers, 39 F.4th 443, 447 (7th Cir. 2022) (“Those familiar with our precedent will recognize these criteria as the Davenport factors.”).^[6]

II. The Fourth Circuit's Savings Clause Jurisprudence

The Fourth Circuit has expressly adopted the rationale of the Seventh Circuit's savings clause jurisprudence particularly its...