United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING WRIT OF HABEAS CORPUS PURSUANT TO 28
U.S.C. § 2241 AND DIRECTING ENTRY OF FINAL
Jane Magnus-Stinson, Chief Judge
Michael Diulio seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2241. His claims are based on the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016). Mathis discusses the appropriate
analysis of predicate offenses under the Armed Criminal
Career Act (ACCA). The ACCA defines “violent
felony” as “any crime punishable by imprisonment
for a term exceeding one year” that 1) “has as an
element the use, attempted use or threatened use of physical
force against the person of another;” 2) “is
burglary, arson, or extortion, [or] involves the use of
explosives;” or 3) “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” § 924(e)(2)(B). These three
“clauses” are respectively known as 1) the
elements clause, 2) the enumerated clause, and 3) the
residual clause. In Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015), the Supreme Court
ruled that the residual clause was unconstitutionally vague.
In Mathis, the Supreme Court discussed the
appropriate analysis to use when comparing past convictions
to a generic offense listed under the enumerated clause of
the ACCA. The career offender enhancement (§ 4B1.1) in
the United States Sentencing Guidelines (U.S.S.G) contains
language similar to the ACCA.
reasons discussed in this Order, Mr. Diulio's petition
for writ of habeas corpus is denied.
of 1988, Mr. Diulio was indicted and charged in the Northern
District of Florida with kidnapping in violation of 18 U.S.C.
§ 1201. See USA v. Diulio, No.
5:88-cr-05018-RV-EMT-1 (N.D. Fl.) (hereinafter “Crim.
Dkt.”), Crim. Dkt. 35 at 2 (report and recommendation
adopted and incorporated in Crim. Dkt. 37). The charges
stemmed from his escape from Appalachee Correctional
Institution (“ACI”) in Sneads, Florida.
Id. Mr. Diulio held a work supervisor at knife point
and forced the man to drive him from ACI. Id. He was
also charged in state court with Escape and Robbery with a
Deadly Weapon as a result of the same incident. Id.
preparation for sentencing, the United States Probation
Office prepared a presentence report (PSR). See
Crim. Dkt. 21 (Sealed). Although the respondent purported to
provide this Court with the PSR from Mr. Diulio's
Northern District of Florida conviction, see Dkt.
31, instead it provided the Court with PSR associated with
Mr. Diulio's conviction in Nevada in 1994.
the Court relies on information about the relevant PSR from
the Northern District of Florida's discussion in its
Order denying Mr. Diulio's motion under 28 U.S.C. §
The Presentence Investigation Report (“PSR”) was
prepared on October 4, 1988. Defendant was classified as a
career offender pursuant to § 4B1.1 of the Guidelines
because of two prior felony convictions, although the
offenses supporting the application of this enhancement were
not specifically identified (ECF No. 21, PSR ¶ 8).
Defendant's criminal history reflected prior convictions
in New Jersey and Florida for armed robbery, possession of
methaqualone, robbery with a firearm (two cases, sentenced on
the same day), and burglary (ECF No. 21, PSR ¶¶ 16,
18, 19, 20). As a career offender, his base offense level was
37 (ECF No. 21, PSR ¶ 8). Defendant received a two-level
downward adjustment for acceptance of responsibility, and
thus his total offense level was 35 (ECF No. 21, PSR ¶
13, 14). His criminal history category was VI, regardless of
whether it was calculated based on the number of criminal
history points or in accordance with § 4B1.1 due to his
career offender status (ECF No. 21, PSR ¶ 25). The
statutory maximum term of imprisonment was life imprisonment
pursuant to 18 U.S.C. § 1201, and the applicable
guidelines range was 292 to 365 months (ECF No. 21, PSR
¶¶ 28, 29). If Defendant had not been categorized
as a career offender, the guideline imprisonment range would
have been 262 to 327 months (ECF No. 21, PSR ¶ 29). On
November 2, 1988, the court sentenced Defendant to a term of
300-months imprisonment (ECF No. 18). Defendant did not
Crim. Dkt. 35 at 2-3.
October 11, 2016, Mr. Diulio filed an amended motion to
vacate pursuant to 28 U.S.C. § 2255 in the Northern
District of Florida, arguing that under Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015), he no longer
qualifies as a career offender. Crim. Dkt. 23. The district
court denied his motion. Crim. Dkt. 35; Crim. Dkt. 37.
6, 2017, Mr. Diulio filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging his
1988 sentence in the Northern District of Florida.
Diulio now challenges his career offender status under
U.S.S.G. § 4B1.1 given the Supreme Court's decision
in Mathis, arguing that his prior convictions in are
not “crimes of violence.”
proceed under § 2241 after having filed a motion
pursuant to 28 U.S.C. § 2255, the § 2255 motion
must have been “inadequate or ineffective to test the
legality of [the petitioner's] detention.” 28
U.S.C. § 2255(e). Section 2255 is inadequate or
ineffective if the following three requirements are met:
“(1) the petitioner must rely on a case of statutory
interpretation (because invoking such a case cannot secure
authorization for a second § 2255 motion); (2) the new
rule must be previously unavailable and apply retroactively;
and (3) the error asserted must be grave enough to be deemed
a miscarriage of justice, such as the conviction of an
innocent defendant.” Davis v. Cross, 863 F.3d
962, 964 (7th Cir. 2017) (citing Montana v. Cross,
829 F.3d 775, 783 (7th Cir. 2016); In re Davenport,
147 F.3d 605, 610-11 (7th Cir. 1998)). Whether § 2255 is
inadequate or ineffective depends on “whether it allows
the petitioner ‘a reasonable opportunity to obtain a
reliable judicial determination of the fundamental legality
of his conviction and sentence.'” Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (en
banc) (quoting In re Davenport, 147 F.3d 605,
609 (7th Cir. 1998)). To properly invoke the Savings Clause
of 28 U.S.C. § 2255(e), a petitioner is required to show
“something more than a lack of success with a ...