United States District Court, W.D. Wisconsin
OPINION AND ORDER
William M. Conley District Judge.
Maurice Maxwell, seeks post-conviction relief pursuant to 28
U.S.C. § 2255. He challenges a “career
offender” sentencing enhancement he received under
U.S.S.G. § 4B1.1, which applies under certain
circumstances when a defendant has two prior felony
convictions for either a “crime of violence” or a
“controlled substance offense.” He also appears
to be asserting a claim related to sentence credit. This
petition is before the court for preliminary review pursuant
to Rule 4 of the Rules Governing Section 2254 Cases, which
applies to petitions not brought under § 2254.
See Rule 1(b), Rules Governing Section 2254 Cases.
Under Rule 4, the court must dismiss the petition if it
plainly appears that petitioner is not entitled to relief.
Otherwise, the court must order respondent to file an answer.
Since it is plainly apparent that Maxwell is not entitled to
relief under § 2255, his petition will be denied.
was convicted of possession with intent to distribute five
grams or more of a substance containing a cocaine base, in
violation of 21 U.S.C. § 841(a)(1). At his 2012
sentencing, the court applied the Sentencing Guidelines'
career offender enhancement, U.S.S.G. § 4B1.1, because
Maxwell was over the age of eighteen when he committed the
offense, a controlled substance offense, and he had at least
two prior felony convictions for either a crime of violence
or a controlled substance offense. The court listed the
predicate offenses: a Minnesota conviction for simple
robbery; a Minnesota conviction for fleeing an officer; and a
Wisconsin conviction for possession with intent to deliver
cocaine. With that enhancement, Maxwell's guidelines
range was between 262 and 327 months' imprisonment. The
court imposed a sentence of 144 months, and reduced it to 125
months to account for the 19 months he had already served.
After Maxwell successfully challenged his sentence twice on
appeal, in 2014 the court resentenced him to 120 months'
imprisonment, and then in 2015, the court resentenced him a
second time, imposing a 120-month sentence, with credit for
19 months. Maxwell appealed that decision as well, but the
Court of Appeals of the Seventh Circuit affirmed that
sentence. United States v. Maxwell, 823 F.3d 1057
(7th Cir. 2016).
Maxwell's petition has not used the court's form, he
cites to United States v. Mathis, 136 S.Ct. 2243
(2016), and so the court understands him to be challenging
his career offender status under that decision. 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. While he does
not argue this point explicitly, it appears that Maxwell
believes that his predicate convictions do not qualify
because the Minnesota simple robbery statute is broader than
the definition of crime of violence under § 4B1.2(a).
aside the government's objection to this petition as
overly vague, the threshold problem with this petition is
that this 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. 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.
case, petitioner is challenging the sentencing court's
application of the sentencing guidelines, but he was
initially sentenced in 2014, well 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 does not preclude Maxwell from pursuing
post-conviction relief for his career offender status, his
claim lacks merit. For one, Maxwell has already
unsuccessfully argued this point with the Seventh Circuit
during his direct appeal. United States v. Maxwell,
823 F.3d 1057, 1060-61 (7th Cir. 2016) (“Maxwell's
argument that the Minnesota statute is broader than §
4B1.2(a)(1) fails.”). Further, the Seventh Circuit
subsequently reaffirmed that conclusion in the context of the
ACCA and Mathis. United States v. Jennings,
860 F.3d 450, 454 (7th Cir. 2017) (“In short, in order
to commit simple robbery in Minnesota, one must intentionally
inflict, or attempt to inflict, physical pain or injury upon
another or must act in such a way to place a person in fear
or physical injury, pain, or death.”). Accordingly,
Maxwell has not established that his career offender
designation was an error.
Maxwell's one-off statements about completion of the
Residential Drug Abuse Treatment Program and sentence credit
are vague and undeveloped, but it appears that he believes
that he may be entitled to less confinement time. However,
challenges to the execution of a sentence are not cognizable
under § 2255, and instead prisoners challenging the
execution of their sentences must do so under the general
habeas statute, 28 U.S.C. § 2241. See §
2255(a); Kramer v. Olson, 347 F.3d 214, 217 (7th
Cir. 2003) (§ 2241 is “usually reserved for
attacking the execution, not the [imposition] of a
Rule 11 of the Rules Governing Section 2254 Cases (which can
be applied to cases under § 2255 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). Given
the Seventh Circuit's recent decision in Hanson
and the Maxwell and Jennings decisions, the
court concludes that reasonable jurists would not debate
whether this petition should be dismissed. Therefore, the
court will not issue a certificate of appealability.
IT IS ORDERED that:
(1) Petitioner Maurice Maxwell's application under 28