Thomas v. Ciolli

• Decision Date: 30 January 2023
• Docket Number: 21 C 50351
• Parties: Dion Thomas, Sr., (44399-424), Petitioner, v. A. Ciolli, Warden, Respondent.
• Court: U.S. District Court — Northern District of Illinois

Dion Thomas, Sr., (44399-424), Petitioner,
v.
A. Ciolli, Warden, Respondent.

No. 21 C 50351

United States District Court, N.D. Illinois

January 30, 2023

MEMORANDUM OPINION AND ORDER

IAIN D. JOHNSTON, UNITED STATES DISTRICT JUDGE

Petitioner Dion Thomas, Sr., a federal prisoner at FCI Oxford, seeks habeas corpus relief under 28 U.S.C. § 2241, arguing he is actually innocent of his 21 U.S.C. § 841(b)(1)(B) sentence enhancement because his prior state conviction does not qualify as a “felony drug offense” under 21 U.S.C. § 802(44). Respondent (the Government) has filed a motion to dismiss, contending Thomas is not entitled to § 2241 relief because he cannot satisfy 28 U.S.C. § 2255(e)'s savings clause to bring a habeas petition. For the reasons below, the Government's motion is granted.

BACKGROUND

In 2013, following a jury trial in the Northern District of Iowa, Thomas was convicted of one count of conspiracy to distribute 100 grams or more of a substance containing a detectable amount of heroin following a prior felony drug conviction (Count One), 21 U.S.C. §§ 841(b)(1)(B) and 846, and one count of distribution of heroin following a prior felony drug conviction (Count Three), 21 U.S.C. § 841(b)(1)(C). See United States v. Thomas, No. 11-CR-2046-LRR, Dkt. Entry 306 (N.D. Iowa). Before trial, the Government filed an information under 21 U.S.C. § 851 notifying Thomas that it intended to rely on his 2009 Illinois conviction for possession of cocaine in violation of 720 ILCS 570/402(c) to enhance his sentence. Id. at Dkt. Entries 91, 290. With the

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enhancement, Thomas was subject to a statutory minimum sentence of ten years, a statutory maximum sentence of life imprisonment, and a term of supervised release of at least eight years. See § 841(b)(1)(B).

Applying a base offense level of 34, plus a three-level enhancement for Thomas' managerial role in the conspiracy, and a criminal history category of IV, the presentence investigation report (PSR) calculated his Sentencing Guidelines range as 292-365 months' imprisonment.^[1] (Dkt. 10-1, p. 9-10, 12-13, 17.) Thomas objected to the Guidelines calculation in the PSR, including the base offense level, the upward adjustment for his role in the offense, and his criminal history category. United States v. Thomas, No. 11-CR-2046-LRR, 2013 WL 3456947, at *4 (N.D. Iowa July 9, 2013) (district court's sentencing order). He also challenged his statutory sentence enhancement, arguing his Illinois § 402(c) conviction could not serve as a predicate “felony drug offense” under § 841(b)(1)(B) because it constituted conduct relevant to his instant federal offenses. Thomas, 2013 WL 3456947, at *4-7.

Following a sentencing hearing, the district court issued a written order on the contested PSR issues. Id. at *1. The court adopted the PSR's Guidelines computation, but granted Thomas' motion for a downward variance from the recommended sentencing range. Thomas, No. 11-CR-2046-LRR, Dkt. Entry 320, p. 2-3, 20-21. He was sentenced to concurrent terms of imprisonment of 240 months and eight years of supervised release. Id. at Dkt. Entry 320, p. 23-24. His sentence was later reduced to 235 months' imprisonment following the passage of Amendment 782 to the Guidelines, which reduced the offense levels assigned to drug quantities for drug-trafficking offenses. Id. at Dkt. Entry 374.

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On appeal, Thomas argued the district court erred by: (1) allowing testimony regarding his alleged crack distribution and money laundering; (2) denying his motion for new counsel; (3) considering his uncharged crack-distribution conduct when calculating his Guidelines' offense level; and (4) considering his Illinois § 402(c) conviction in his Guidelines' criminal history calculation. See United States v. Thomas, 760 F.3d 879 (8th Cir. 2014). The Eighth Circuit affirmed, id., and the Supreme Court denied Thomas' petition for a writ of certiorari. Thomas v. United States, 574 U.S. 1102 (2015).

Thomas then filed a motion under 28 U.S.C. § 2255, which raised various claims of ineffective assistance of counsel, prosecutorial misconduct, and trial court errors. Thomas v. United States, No. 16-CV-2006-LRR, Dkt. Entry 1 (N.D. Iowa). The district court denied his motion, holding his claims were either meritless or procedurally defaulted. Thomas v. United States, Nos. 11-CR-2046-LRR, 16-CV-2006-LRR, 2017 WL 3526664, at *13 (N.D. Iowa Aug. 16, 2017); see also Thomas v. United States, No. 18-1492, 2018 WL 11303675 (8th Cir. Oct. 31, 2018) (denying Thomas' request for a certificate of appealability); Thomas v. United States, 139 S.Ct. 2656 (Mem.) (2019) (denying his petition for a writ of certiorari).

In 2019, Thomas again sought § 2255 relief, this time challenging his sentence under Mathis v. United States, 579 U.S. 500 (2016). See Thomas v. United States, No. 19-CV-2052-LRR, Dkt. Entry 1 (N.D. Iowa). The district court denied his motion as an unauthorized second or successive motion, and his appeal was subsequently dismissed. Id. at Dkt. Entries 7, 16.

Thomas now brings a habeas corpus petition under 28 U.S.C. § 2241 challenging his § 841(b)(1)(B) sentence enhancement. (Dkt. 1, p. 7-8.) As mentioned above, at the time of Thomas' federal offenses, § 841(b)(1)(B) provided for a five-year mandatory minimum sentence

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that increased to a mandatory minimum term of imprisonment of ten years if the defendant was convicted “after a prior conviction for a felony drug offense.” 21 U.S.C. § 841(b)(1)(B).^[2] The term “felony drug offense” is defined as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Invoking the Supreme Court's decision in Mathis and the Seventh Circuit's decision in Najera-Rodriguez v. Barr, 926 F.3d 343 (7th Cir. 2019), Thomas' § 2241 petition argues that he is actually innocent of his § 841(b)(1)(B) sentence enhancement because his Illinois § 402(c) conviction cannot serve as a predicate “felony drug offense” as the state statute is categorically broader than its federal counterpart. (Dkt. 1-1, p. 2-6.)

In response to Thomas' § 2241 petition, the Government filed a motion to dismiss, arguing Thomas cannot satisfy the requirements of 28 U.S.C. § 2255(e)'s savings clause to seek § 2241 relief for this claim. (Dkt. 11.) For the reasons below, the Court grants the Government's motion.

ANALYSIS

I. Thomas' Categorical-Approach Claim

As noted above, before his federal drug convictions, Thomas was convicted in Illinois for possession of less than 15 grams of cocaine in violation of 720 ILCS 570/402(c). See Thomas, No. 11-CR-2046-LRR, Dkt. Entries 91, 290. Section 402(c) is a broad, residual provision under

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Illinois' unlawful possession statute that criminalizes possession “with regard to an amount of a controlled substance other than methamphetamine or counterfeit substance not set forth in subsection (a) or (d).” 720 ILCS 570/402(c). At the time of Thomas' Illinois offense and conviction, “controlled substance” was defined under state law as a “drug, substance, or immediate precursor” under the state's drug schedules.^[3] 720 ILCS 570/102(f).

Thomas argues that his § 402(c) conviction is categorically broader^[4] than the federal definition of “felony drug offense” under § 802(44) because Illinois' drug schedule defines cocaine to include positional isomers, see 720 ILCS 570/206(b)(4) (Schedule II); whereas, the federal drug schedule does not, see 21 U.S.C. §§ 802(14), 802(17), 812, Schedule II(a)(4). (Dkt. 1-1, p. 4-6.) He also contends Illinois' definition of cocaine analogue is broader than the federal definition of a controlled substance analogue. Id. In addition to being overbroad, Thomas further argues that Illinois' catchall-drug-possession statute is not divisible because the Seventh Circuit held in Najera-Rodriguez that § 402(c) consists of alternative means, not alternative elements, and therefore, under Mathis,^[5] is not subject to the modified categorical approach. (Dkt. 1-1, p. 2-6);

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see also Najera-Rodriguez, 926 F.3d at 350-56. For these reasons, Thomas contends his Illinois § 402(c) conviction does not qualify as a “felony drug offense” for purposes of § 841(b)(1)(B)'s sentence enhancement and he is entitled to resentencing. (Dkt. 1-1, p. 6.)

The Seventh Circuit has applied the categorical approach to determine whether a prior Illinois drug conviction qualifies as a predicate offense under a federal recidivism statute on several occasions. See United States v. Ruth, 966 F.3d 642, 645-50 (7th Cir. 2020) (considering whether a 2006 Illinois conviction for possession with intent to distribute cocaine qualifies as a “felony drug offense” under § 841(b)(1)'s sentence enhancements); Najera-Rodriguez, 926 F.3d at 347-56 (considering whether a prior Illinois § 402(c) conviction constitutes a “controlled substance offense” under 8 U.S.C. § 1227(a)(2)(B)(i) in an immigration removal proceeding); United States v. De La Torre, 940 F.3d 938, 948-49 (7th Cir. 2018) (considering whether a 1993 Illinois conviction under § 402(c) is a “felony drug offense” for purposes of § 841(b)(1)). Of these cases, the one most applicable to Thomas' claim is Ruth.^[6] In Ruth, on direct appeal, the Seventh Circuit

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held a prior Illinois conviction for possession with intent to distribute cocaine under 720 ILCS 570/401(c)(2) swept more broadly than § 841(b)(1)'s “felony drug offense” sentence enhancement because Illinois' definition of cocaine includes positional isomers, and the federal definition includes only geometric and optical isomers. Id. at 645-50. Thomas' claim mirrors the issue Ruth addressed. See (Dkt. 1-1, p. 4) (“Illinois['] definition of ‘cocaine' is broader than the federal definition of ‘cocaine'...