United States District Court, W.D. Wisconsin
BARBARA B. CRABB DISTRICT JUDGE
prisoner Bobby Wayne Haley, Jr. has filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2241,
challenging a sentence enhancement he received in 2007 under
U.S.S.G. § 4B1.1 for being a “career offender,
” a status that applies under certain circumstances to
a defendant with at least two prior convictions for a
“controlled substance offense, ” among other
things. Relying on United States v. Mathis, 136
S.Ct. 2243 (2016), petitioner contends that two of his prior
convictions do not qualify as controlled substance offenses,
that he would not meet the requirements for being a career
offender under the sentencing guidelines without those
convictions and that he could have received a significantly
lower sentence without the career offender enhancement. In a
supplement that he filed several weeks later, petitioner also
challenges the sentencing court's reliance on a third
prior conviction on the ground that the conviction was
recently reduced “retroactively” from a felony to
cannot consider the merits of the petition because
petitioner's claims are foreclosed by circuit precedent.
In Hawkins v. United States, 724 F.3d 915, 916 (7th
Cir. 2013), the court of appeals reaffirmed its previous
holding in Hawkins v. United States, 706 F.3d 820
(7th Cir. 2013), that “an error in calculating a
defendant's guidelines sentencing range does not justify
post conviction relief unless the defendant [was] sentenced
in the pre-Booker era, when the guidelines were
mandatory rather than merely advisory.” See also
United States v. Coleman, 763 F.3d 706, 708-09 (7th Cir.
2014) (recognizing that Hawkins is “the law of
this circuit”). In this case, petitioner is challenging
the sentencing court's application of the sentencing
guidelines and he acknowledges that he was sentenced in 2007,
two years after the Supreme Court held that the guidelines
are advisory in United States v. Booker, 543 U.S.
220 (2005). Thus, Hawkins applies and petitioner
cannot rely on Mathis or any other change in the law
to challenge his status as a career offender in a post
Hawkins involved a motion under 28 U.S.C. §
2255 rather than a petition under 28 U.S.C. § 2241, I
see no basis for distinguishing Hawkins on that
ground. As noted above, the court's ruling is not limited
to § 2255 motions, but applies to all
“postconviction relief.” Further, the court of
appeals reasoned in Hawkins that a prisoner could
not challenge a sentencing guideline error in a § 2255
motion because such an error was not a “miscarriage of
justice” in light of the fact that the guidelines do
not affect the statutory maximum, so the sentencing court
would be entitled to impose the same sentence even if the
case were remanded. Hawkins, 706 F.3d at 825.
Because a petitioner seeking relief under § 2241 must
also show that denying relief would result in a
“miscarriage of justice, ” e.g.,
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012),
the reasoning in Hawkins applies equally to a §
only wrinkle relates to two cases that petitioner cites.
First, in Brown v. Caraway, 719 F.3d 583, 594-96
(7th Cir. 2013), the court stated that a prisoner may bring a
§ 2241 petition “to challenge the misapplication
of the career offender Guideline, at least where, as
here, the defendant was sentenced in the pre-Booker
era.” Brown, 719 F.3d at 588 (emphasis added).
Although Brown was decided after Hawkins,
the court did not cite the case. The court's use of the
phrase “at least” seems to suggest that it
remains an open question whether a prisoner may bring a
§ 2241 petition to challenge a post-Booker
application of the sentencing guidelines.
in Dawkins v. United States, 829 F.3d 549 (7th Cir.
2016), the prisoner tried to bring a successive § 2255
motion in order to challenge his status as a career offender,
relying on the Supreme Court's new interpretation in
Mathis. The court of appeals declined to authorize a
successive motion on the ground that “only new rules of
constitutional law, made retroactive by the Supreme Court,
can provide a basis for authorization.”
Dawkins, 829 F.3d at 551. The court then stated that
“[a]n independent claim based on Mathis must
be brought, if at all, in a petition under 28 U.S.C. §
2241.” Id. Again, the court of appeals did not
address the effect that Hawkins could have on the
Brown and Dawkins could be interpreted as
opening the door to a claim like petitioner's, I do not
believe that either case is instructive. In neither case did
the court purport to overrule Hawkins or undermine
its holding. Because Hawkins is directly on point, I
conclude that it is controlling and requires dismissal of
this petition, despite more ambiguous language in the other
acknowledge that some district courts recently have allowed
claims like petitioner's to proceed past the screening
stage. E.g., Stewart v. Werlich, 2017 WL
1348001, at *4 (S.D. Ill. 2017); Kennedy v. Warden,
2017 WL 1167322, at *2 (S.D. Ill. 2017). However, none of
those courts acknowledged Hawkins, so those
decisions are not persuasive.
Rule 11 of the Rules Governing Section 2254 Cases (which
applies to cases under § 2241 as well), the court must
issue or deny a certificate of appealability when entering a
final order adverse to a petitioner. The question is whether
"reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted). Because
Dawkins and Brown create some ambiguity,
there is some room for debate regarding how the court of
appeals might resolve petitioner's claim. Accordingly, I
will issue petitioner a certificate of appealability.
Petitioner Bobby Wayne Haley's petition for a writ of
habeas corpus under 28 U.S.C. § 2241 is DENIED.
Petitioner is GRANTED a certificate of appealability.
clerk of court is directed to enter judgment ...