United States District Court, S.D. Indiana, Terre Haute Division
WILLIAM H. COUNCIL, Petitioner,
CHARLES DANIELS Warden, Respondent.
ORDER DENYING WRIT OF HABEAS CORPUS PURSUANT TO 28
U.S.C. § 2241 AND DIRECTING ENTRY OF FINAL
Jane Magnus-Stinson, Chief Judge
William H. Council seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2241. Mr. Council asserts that he is no
longer an armed career criminal or a career offender in view
of Mathis v. United States, 136 S.Ct. 2243 (2016).
His petition is denied.
succeed on a motion for relief under § 2241, a motion
pursuant to 28 U.S.C. § 2255 must be “inadequate
or ineffective to test the legality of his 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). “The petitioner bears the
burden of coming forward with evidence affirmatively showing
the inadequacy or ineffectiveness of the § 2255
remedy.” Smith v. Warden, FCC Coleman-Low, 503
Fed.Appx. 763, 765 (11th Cir. 2013) (citation omitted).
Factual and Procedural Background
September 1, 2015, Mr. Council pleaded guilty in the Western
District of Missouri to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). United States v. Council,
2:14-cr-04039-BCW-1 (W.D. Mo.) (hereinafter, “Crim.
Dkt.”), Crim. Dkt. 43; see also United States v.
Council, 860 F.3d 604, 606 (8th Cir. 2017). In exchange
for concessions made by the government, Mr. Council entered
into a binding plea agreement pursuant to Fed. R. Crim.
P. 11(c)(1)(C). Crim. Dkt. 45. As part of the factual
basis for the guilty plea, Mr. Council admitted that he had
previously been convicted in 1992 of felony unlawful use of a
weapon and felony distribution of a controlled substance and
in 2003 of felony unlawful use of a weapon. Id. at
2. The parties agreed that the applicable Guidelines section
was §2K2.1, and that Mr. Council was entitled to a
3-level reduction for acceptance of responsibility, pursuant
to §3E1.1(b). The parties agreed that the district court
would determine Mr. Council's applicable Sentencing
Guidelines range and would determine the appropriate
sentence. Id. at 3, 6. Mr. Council further agreed
not to collaterally challenge his sentence “on any
ground except claims of: (1) ineffective assistance of
counsel; (2) prosecutorial misconduct; or (3) an illegal
sentence.” Id. at 9. An “illegal
sentence” included “a sentence imposed in excess
of the statutory maximum, but does not include less serious
sentencing errors, such as a misapplication of the Sentencing
Guidelines, an abuse of discretion, or the imposition of an
unreasonable sentence.” Id.
United States Probation Office filed a presentence report in
preparation for sentencing. Dkt. 11. Using the 2015 edition
of the Sentencing Guidelines, the Probation Office determined
that being a felon in possession of a firearm provided for a
base offense level of 26 under U.S.S.G. § 2K2.1(a)(1).
Id. at 7, ¶¶ 13-14. That level was
increased by two under § 2K2.1(b)(3)(B) because Mr.
Council possessed a sawed-off shotgun, a destructive device.
That level was increased by four under § 2K2.1(b)(6)(B)
because Mr. Council possessed a sawed-off shotgun in
connection with another felony offense. His adjusted offense
level was 32. Id. at 9, ¶ 20. The Probation
Office, however, found Mr. Council to be an armed career
criminal, subject to an enhanced sentence under 18 U.S.C.
§ 924(e). Id. ¶ 22. As an armed career
criminal, his offense level was 34 and, statutorily, would
subject him to a sentence of not less than 15 years up to
life imprisonment. Id. ¶¶ 22, 83. The
convictions supporting the armed career criminal designation
included Mr. Council's 1992 Missouri convictions on three
separate counts of sale of a controlled substance.
Id. ¶ 39. Although sentenced on the same date,
each sale occurred on different dates: the first sale on
November 12, 1990, the second sale on November 14, 1990, and
the third sale on December 13, 1990. That offense level
combined with a criminal history Category VI resulted in a
guidelines custody range of 188 to 235 months'
imprisonment. Id. at 19, ¶ 84.
other objections, Mr. Council objected to the Probation
Office's finding that he qualified as an armed career
offender under § 924(e)(1). Crim. Dkt. 51; Crim. Dkt. 58
at 2-8. Mr. Council argued that the three sales should have
counted as one incident as they occurred at the same time.
Crim. Dkt. 58 at 5.
the sentencing court found Mr. Council's prior drug
convictions qualified as predicate offenses under the ACCA
and the Guidelines. Because the plea agreement did not
contemplate Mr. Council's sentencing as an armed career
criminal, Mr. Council was given the opportunity to withdraw
his guilty plea, but he chose to continue to plead guilty.
Id. at 8. On February 2, 2016, Mr. Council was
sentenced to the statutory minimum of 180 months'
imprisonment. Crim. Dkt. 53.
appeal, Mr. Council challenged the district court's
motion to suppress evidence related to his arrest and ensuing
search. The Eighth Circuit affirmed the judgment. See
Council, 860 F.3d at 613. Mr. Council did not file a
motion pursuant to 28 U.S.C. § 2255.
Council now files a petition under § 2241 challenging
Mathis v. United States, 136 S.Ct. 2243
(2016), Mr. Council challenges his conviction as
an Armed Career Criminal, asserting that “simple”
possession of a firearm under 18 U.S.C. § 922(g)(1) is a
non-violent act that does not trigger the provisions of the
Armed Career Criminal Act and that his prior convictions no
longer qualify as controlled substance offenses under the
U.S. Sentencing Guidelines or the Armed Career Criminal Act.
See dkt. 1 ...