Poke v. Smith
| Decision Date | 09 March 2020 |
| Docket Number | Case No. 19-cv-200-NJR |
| Parties | BOBBY POKE, JR., # 07430-028, Petitioner, v. M.D. SMITH, Warden, MCFP-Springfield, Missouri, Respondent. |
| Court | U.S. District Court — Southern District of Illinois |
Petitioner Bobby Poke, Jr., an inmate in the Bureau of Prisons, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (Docs. 1, 9). In 2005, Poke was sentenced to a 310-month term of imprisonment after his guilty plea in the Southern District of Indiana. The sentence consisted of concurrent 250-month terms on Counts 1 and 2 for distribution of 5 or more kilograms of cocaine (21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)), and possession with intent to distribute 500 grams or more of cocaine (21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii)) respectively, plus a consecutive 60 months for possession of a firearm in relation to a drug trafficking crime (Count 3) (18 U.S.C. § 924(c)(1)). (Doc. 9, p. 2; Doc. 11, p. 3); United States v. Poke, No. 04-cr-27-01 (S.D. Ind., Aug. 5, 2005); (Doc. 11-2).
Poke invokes Mathis v. United States, - U.S. -, 136 S. Ct. 2243 (2016), and United Statesv. Elder, 900 F.3d 491 (7th Cir. 2018), to argue that his statutory mandatory minimum sentence as well as the calculation of his sentencing guidelines under United States Sentencing Guideline (USSG) § 4B1.2 were improperly enhanced based on a 1995 Illinois conviction for possession with intent to deliver cocaine. He asks this Court to vacate his sentence and refer the matter to the Southern District of Indiana to resentence him without the recidivist enhancements. (Doc. 1, p. 8).
Respondent filed a Motion to Dismiss the Habeas Petition (Doc. 11), which is now before the Court along with Poke's Response. (Doc. 13).
In July 1995, Poke was convicted in Winnebago County, Illinois, Case No. 94-CF-2979, of possession with intent to deliver 1-15 grams of cocaine, in violation of 720 ILCS 570/401(c)(2) (1995). (Doc. 9, pp. 1-2; Doc. 11-4).
In March 2005 in the Southern District of Indiana, Poke pled guilty without a plea agreement to Counts 2 and 3 only; he received sentences of 250 months on the drug offense and 60 months consecutive on the firearm offense. (Doc. 11, p. 3; Doc. 11-1, pp. 4-5). He later entered a negotiated plea to the Count 1 drug offense, on which he received a concurrent 250-month term. (Doc. 11, p. 4; Doc. 11-1, p. 6; Doc. 11-2).
At Poke's original sentencing in May 2005, the court calculated the applicable advisory guideline for Count 2 at a range of 292-365 months, with a mandatory consecutive minimum sentence of 60 months for Count 3. (Doc. 11, p. 4; Doc. 10-1, p. 13). This calculation included a career offender enhancement under USSG § 4B1.1 based on Poke's 1995 Illinois drug conviction qualifying as a "controlled substance offense," and a 1998 aggravated battery conviction, which raised his total offense level from 30 to 37. (Doc. 10-1, p. 6). However, that level was lowered to 35 for acceptance of responsibility. Id.; (Doc. 11, p. 4). Poke's original criminal history level ofIV was raised to VI as a result of his career offender designation. (Doc. 10-1, p. 9). Poke's sentence was imposed after United States v. Booker, 542 U.S. 220 (2005), rendered the sentencing guidelines advisory rather than mandatory. (Doc. 11-5, pp. 16, 27-30).
The statutory sentencing range for Count 2 under 21 U.S.C. § 841(b)(1)(B)(ii) (2005) was 10 years to life, enhanced because of Poke's Illinois drug conviction. (Doc. 10-1, pp. 1, 13; Doc. 11-5, p. 29). In the absence of a prior "felony drug offense," the unenhanced statutory range would have been 5-40 years. 21 U.S.C. § 841(b)(1)(B)(ii) (2005).
Poke argues that his Illinois drug conviction was improperly used to enhance both his statutory sentencing range under 21 U.S.C. § 841(b)(1)(B)(ii), and his guideline sentencing range under USSG § 4B1.1. He asserts that after application of the categorical analysis set forth in Mathis and as applied in Elder, the Illinois statute of his conviction no longer constitutes a "felony drug offense" under the federal statute or a "controlled substance offense" under the guidelines (§ 4B1.2), because of the overbreadth of the Illinois statutory drug definitions when compared with the federal Controlled Substances Act. (Doc. 9, pp. 25-35).
Poke urges that he has the due process right to be sentenced based on accurate information, therefore Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), should not operate to defeat his claim. (Doc. 9, pp. 8-20). Additionally, he claims that to deny habeas relief under Mathis to a petitioner sentenced post-Booker while allowing such relief for a pre-Booker sentence amounts to an equal protection violation. (Doc. 9, p. 24).
Respondent argues that Poke's case falls squarely within the rule set forth in Hawkins, and is subject to dismissal because Poke's post-Booker sentence was within the statutory range of boththe enhanced (10 years to life) and unenhanced (5-40 years) provisions of § 841(b)(1)(B)(ii). (Doc. 11, pp. 7-8).
The motion also "expressly preserves the Department of Justice's newly-established position that a prisoner . . . who has already unsuccessfully sought relief under § 2255 cannot establish his eligibility to file a habeas petition under the saving clause by relying on a later-issued decision of statutory interpretation." (Doc. 11, p. 6, n.2).2 As Respondent acknowledges, this position is currently foreclosed by binding Seventh Circuit precedent as set forth in In re Davenport, 147 F.3d 605, 608-12 (7th Cir. 1998). Id.
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 waspreviously 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) () (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).
This Court need not reach the ultimate merits of Poke's argument that the Illinois drug statute (720 ILCS 570/401 (1995)) criminalizes a broader swath of conduct than does the federal statute or the sentencing guidelines. Under Hawkins, he cannot demonstrate the existence of a fundamental defect in his conviction or sentence that is grave enough to be deemed a miscarriage of justice, and thus he fails to satisfy the requirements of Section 2255(e)'s savings clause to bring his Mathis claim in a Section 2241 petition.
Some errors can be raised on direct appeal but not in a collateral attack in a Section 2255 motion or a Section 2241 petition. A claim that a defendant's guideline sentencing range was erroneously calculated is one such claim. Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), supplemented on denial of rehearing, 724 F.3d 915 (7th Cir. 2013); see also United States v. Coleman, 763 F.3d 706, 708-09 (7th Cir. 2014) (...
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