Rickett v. Werlich

DOMINIC RICKETT, # 23439-045, Petitioner, v. T.G. WERLICH, Respondent.

Case No. 19-cv-1011-NJR

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

September 28, 2020

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Petitioner Dominic Rickett, an inmate in the Bureau of Prisons currently incarcerated at FCI-Greenville, filed this action in September 2019. His Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 10) is now before the Court. Rickett invokes Rehaif v. United States, ___ U.S. ___, 139 S. Ct. 2191 (2019), as the basis for his collateral attack and request for immediate release. Respondent answered the Petition (Doc. 13), and Rickett replied (Doc. 18).

Rickett pled guilty to being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) in the Western District of Missouri, Case No. 11-cr-181-DW-1 ("criminal case") and is serving a 120-month sentence. (Doc. 13, p. 1, Doc. 13-1; Docs. 41, 57 in criminal case).

RELEVANT FACTS AND PROCEDURAL HISTORY

In August 2011, Rickett was indicted for unlawfully possessing ammunition as a felon based on a January 2011 arrest where a firearm magazine containing 9mm ammunition was found on his person. (Doc. 13, p. 2; Doc. 13-2). The indictment did not specifically allege that Rickett knew he was a convicted felon at the time he possessed the ammunition. Rickett entered an open plea of guilty on March 15, 2012, and was advised that under Section 924(e), he faced a sentence of 15 years to life if the court determined he was an armed career criminal. (Doc. 13-3, pp. 3-4). Rickett admitted on the record that he had more than one prior state felony conviction at the time he possessed the ammunition. Id. at 9-10.

The Presentence Investigation Report (PSR) found that Rickett had been convicted of six felonies before his federal possession offense. (Doc. 13, p. 4; Doc. 14-1, pp. 8-11). He had received a 3-year suspended sentence for each conviction, and spent only 60 days in custody. (Doc. 13, p. 4). In September 2012, Rickett was sentenced to 180 months on the instant offense. He appealed, arguing that two of his prior burglary convictions should not be counted as separate crimes for sentence enhancement purposes, but the Eighth Circuit affirmed his sentence. United States v. Rickett, 516 F. App'x 606 (8th Cir. 2013).

Rickett's first motion under 28 U.S.C. § 2255 was unsuccessful. (Case No. 14-cv-650-DW (W.D. Mo.)). However, he was permitted to file a successive Section 2255 motion raising Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), which resulted in the district court vacating the 180-month sentence and resentencing him to 120 months. (Doc. 13, p. 5; Docs. 50, 57 in criminal case).

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 convictionand 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, however, 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."¹

Following Davenport and its progeny, the Seventh Circuit has enunciated a three-part testfor determining whether Section 2255 is inadequate or ineffective, thus triggering the savings clause:

(1): the federal prisoner must seek relief based on a decision of statutory interpretation (as opposed to a decision of constitutional interpretation, which the inmate could raise in a second or successive § 2255 motion);

(2): the statutory rule of law in question must apply retroactively to cases on collateral review and could not have been invoked in a first § 2255 motion; and

(3): a failure to afford the prisoner collateral relief would amount to an error "grave enough" to constitute "a miscarriage of justice."

Worman v. Entzel, 953 F.3d 1004, 1008 (7th Cir. 2020) (emphasis in original) (citing Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016); Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)). See also Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). Thus, "there must be some kind of structural problem with section 2255 before section 2241 becomes available. In other words, something more than a lack of success with a section 2255 motion must exist before the savings clause is satisfied." Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).

ANALYSIS

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 precedentin all eleven circuit courts of appeal which had held that knowledge was not an element that the prosecution must prove to obtain a conviction.

In Rickett's view, his "criminal liability ... remains unresolved" in light of Rehaif. (Doc. 10, p. 2). This, of course, is incorrect - Rickett's conviction still stands unless and until a court rules otherwise. The Rehaif decision itself did not undo his conviction or render his criminal liability "unresolved." Rickett states he does not seek to have his conviction or sentence vacated, but appears to assert that his indictment failed to state an offense because it did not include the element that he knew he "belonged to the relevant status, that barred him from possessing a firearm," thus his custody is unlawful. Id. In addition to Section 2241, he invokes several sections of the Code of Federal Regulations which he believes authorizes him to seek remedies against the United States Department of Justice and other federal officials including immediate release. (Doc. 10, pp. 1-3). Rickett also argues for the first time in his Reply that a defendant's knowledge of his felon status must be proven with ATF Form 4473 or Form 6, and this was not done in his case. (Doc. 18, pp. 1-8).

This Court already informed Rickett that his claim will be evaluated under 28 U.S.C. § 2241 and the savings clause of 28 U.S.C. § 2255(e), and that it does in fact amount to a challenge to his conviction regardless of how he describes this action. (Doc. 12, p. 2). Respondent concedes that Rickett's Rehaif claim satisfies the first and second prongs of the savings clause test - Rehaif is a statutory interpretation case, and it sets forth a new substantive rule narrowing the scope of Section 922(g), which applies retroactively. (Doc. 13, pp. 17-18). Further, this new substantive rule was previously unavailable to Rickett because it would have been futile to raise his claim in the Eighth Circuit under pre-Rehaif precedent. Id. However, Respondent asserts Rickett cannot meet the third Davenport factor - a showing that an error in his conviction amounts to amiscarriage of justice - because he was not convicted of a crime of which he was innocent. (Doc. 13, pp. 19-25).²

It is true that Rickett's indictment did not allege that he knew he was a convicted felon at the time he possessed the ammunition. This was consistent with the pre-Rehaif controlling precedent at the time in the Eighth Circuit. See United States v. Thomas, 615 F.3d 95, 899 (8th Cir. 2010) (government was not required to prove that Section 922(g) defendant knew of his disabling status); United States v. Kind, 194 F.3d 900,...