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Diulio v. Warden USP Terre Haute

United States District Court, S.D. Indiana, Terre Haute Division

August 29, 2018

GENE MICHAEL DIULIO, Petitioner,
v.
WARDEN USP Terre Haute, Respondent.

          ORDER DENYING WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND DIRECTING ENTRY OF FINAL JUDGMENT

          Hon. Jane Magnus-Stinson, Chief Judge

         Gene 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.

         For the reasons discussed in this Order, Mr. Diulio's petition for writ of habeas corpus is denied.

         I. Background

         In June 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.

         In 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.[1]

         Nonetheless, 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. § 2255:

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 appeal.

Crim. Dkt. 35 at 2-3.

         On 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.

         On July 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.

         II. Discussion

         Mr. 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.”

         To 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 ...


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