United States District Court, W.D. Wisconsin
OPINION AND ORDER
William M. Conley District Judge.
Dashawn Lamar Bates, a federal prisoner incarcerated at the
Federal Correctional Institution in Oxford, Wisconsin, seeks
post-conviction relief pursuant to 28 U.S.C. § 2241. On
November 12, 2013, Bates pleaded guilty to violating 18
U.S.C. §§ 922(g), 924(a)(2), felon in possession of
a firearm. United States v. Bates, No. 1:13-cr-149-RHB, dkt.
#24 (W.D. Mich. Nov. 12, 2013.) On March 25, 2014, he was
sentenced to a term of 108 months of imprisonment, to be
followed by three years of supervised release. While the
content of the presentence investigation report
(“PSR”) is not publicly available, Bates claims
that he was sentenced under the advisory Guidelines, and
received a two-point enhancement pursuant to U.S.S.G. §
2K2.1(a), based on two prior Michigan convictions for
possession with intent to deliver cocaine. Now he seeks
relief because that enhancement was improper in light of the
Supreme Court's decision in United States v. Mathis, 136
S.Ct. 2243 (2016). However, because he is not entitled to
challenge his guidelines enhancement through post-conviction
relief, his petition will be denied.
claims that he is entitled to resentencing in light of
United States v. Mathis, 136 S.Ct. 2243 (2016). 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.” Id. at 2248. In Bates'
view, the two Michigan drug convictions could not enhance his
sentence because the Michigan statute's definition of
“delivery” is broader than the U.S. Sentencing
Guidelines' definition of a controlled substance offense.
petitioner's claim is 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”). The Seventh Circuit recently reaffirmed
these holdings in Hanson v. United States, __ F.3d
__, 2019 WL 5406665, at *3 (7th Cir. Oct. 22, 2019), finding
that Hawkins and Coleman foreclosed relief
in a Mathis challenge brought under 28 U.S.C. §
2255, since the sentence was imposed based on advisory
Guidelines, not mandatory Guidelines or statutory minimums.
In this case, petitioner is challenging the sentencing
court's application of the sentencing guidelines, but he
was sentenced in 2014, nine 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 proceeding.
Hawkins involved a motion under 28 U.S.C. §
2255 rather than a petition under 28 U.S.C. § 2241, that
is not a basis for distinguishing it. 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 § 2241 petition.
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). Since
the Hanson decision removes any doubt as to whether
Hawkins and Coleman preclude relief here,
the court will not issue petitioner a certificate of
IT IS ORDERED that:
(1) Petitioner Dashawn Bates' application under 28 U.S.C.