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Council v. Daniels

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

October 23, 2018

WILLIAM H. COUNCIL, Petitioner,
v.
CHARLES DANIELS Warden, 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

         Petitioner 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.

         I. Standard

         To 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).

         II. Factual and Procedural Background

         On 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.

         The 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.

         Amongst 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.

         Ultimately, 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.

         On 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.

         Mr. Council now files a petition under § 2241 challenging his sentence.

         III. Discussion

         Citing Mathis v. United States, 136 S.Ct. 2243 (2016)[1], 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 ...


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