United States District Court, W.D. Wisconsin
ANTHONY C. DUMAS, Petitioner,
UNITED STATES OF AMERICA Respondent.
OPINION AND ORDER
BARBARA B. CRABB District Judge.
prisoner Anthony C. Dumas has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241, challenging a 2008
sentence enhancement he received 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 “crime of violence or
a controlled substance offense.” Petitioner was found
to be a career offender because he had four prior Rock
County, Wisconsin felony convictions: Case Nos. 92CR2077
(armed robbery), 98CF1506 (possession with intent-cocaine),
01CF3517 (possession with intent-cocaine) and 05CF972
(possession with intent-cocaine). Relying on United
States v. Mathis, 136 S.Ct. 2243 (2016), petitioner
contends that none of these prior convictions qualify as
crimes of violence or controlled substance offenses for
purposes of the career offender guideline and that he could
have received a significantly lower sentence without the
career offender enhancement. In Mathis, the Supreme
Court held that a prior conviction counts as a predicate
crime under the Armed Career Criminal Act, 18 U.S.C. §
924(e)(1), only “if its elements are the same as, or
narrower than, those of the generic offense.”
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, but he was sentenced in 2008, three 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 conviction
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 of appeal's ruling is
not limited to § 2255 motions, but applies to all
“postconviction relief.” Further, the court
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 §
cites Dawkins v. United States, 829 F.3d 549 (7th
Cir. 2016), in which a prisoner tried to bring a successive
§ 2255 motion to challenge his status as a career
offender, relying on the Supreme Court's decision 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. Because Mathis
did not announce a new rule of constitutional law, the
prisoner could not rely on that decision to bring a
successive motion under § 2255. 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. However, the court of
appeals did not address the effect that Hawkins
could have on the prisoner's claim. Thus, although
Dawkins could be interpreted as opening the door to
a claim like petitioner's, I do not believe that it is
instructive. The court did not 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.
acknowledge that in recent decisions, some district courts
have allowed claims like petitioner's to proceed past the
screening stage. E.g., McCoy v. True, 2017
WL 3704380, *3 (S.D. Ill. Aug. 28, 2017); Stewart v.
Werlich, 2017 WL 1348001, at *4 (S.D. Ill. April 5,
2017). However, I do not find those decisions persuasive
because they do not acknowledge Hawkins.
Rule 11 of the Rules Governing Section 2254 Cases (which can
be applied 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 creates some ambiguity, there is
room for debate about how the court of appeals might resolve
petitioner's claim. Accordingly, I will issue petitioner
a certificate of appealability.
Petitioner Anthony C. Dumas's petition for a writ of
certiorari under 28 U.S.C. § 2241 is DENIED.
Petitioner is GRANTED a certificate of appealability.
clerk of court is directed to enter judgment ...