United States District Court, S.D. Illinois
TRACY L. PARKER, Petitioner,
JEFFREY S. WALTON Respondent.
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
Tracy L. Parker, an inmate in the custody of the BOP, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. (Doc. 1). Petitioner was sentenced as an armed career criminal (ACC) under 18 U.S.C. § 924(e). He argues that he is entitled to habeas relief because his prior convictions for burglary are not violent felonies under the "categorical approach" mandated by the Supreme Court in Descamps v. United States, 133 S.Ct. 2276 (2013).
Now before the Court is respondent's Motion to Dismiss (Doc. 7). Respondent argues that petitioner cannot proceed under § 2241 because the remedy under 28 U.S.C. § 2255 is still available to him.
Petitioner filed a response in opposition (Doc. 9). He also filed an "Amendment and Clarification" to his petition (Doc. 8) and a Request to Take Judicial Notice (Doc. 10). The Court has considered the matters raised in all of petitioner's pleadings in ruling on respondent's motion.
I. Relevant Facts and Procedural History
On September 28, 2000, Parker pled guilty to one count of possession of a firearm by a convicted felon in the Central District of Illinois. Because he had at least three prior convictions for violent felonies, he was sentenced as an armed career criminal (ACC) under 18 U.S.C. § 924(e) and received 150 months imprisonment.
According to the petition, the presentence investigation report stated that Parker had prior Illinois convictions for violent offenses consisting of four burglaries, one residential burglary, one aggravated battery, and one arson. Doc. 1, pp. 2-3.
Parker did not file a direct appeal or a motion under 28 U.S.C. § 2255. Doc. 1, p, 3; Doc. 7, Ex. 3.
II. Present Custody Status
Petitioner's 150 month sentence has now expired. See Doc. 7, p. 3, n. 2. However, he also pled guilty in September, 2002, to charges of conspiracy to escape and attempted escape. These charges arose out of a scheme to escape from custody while he was awaiting sentencing on the felon in possession charge. He was sentenced to 48 months imprisonment on each charge, to run consecutively to each other and to the 150 month sentence on the felon in possession conviction. See U.S. v. Parker, 368 F.3d 963 (7th Cir. 2004).
For habeas purposes, consecutive sentences are viewed in the aggregate. Parker is still "in custody" and can challenge the expired 150 month sentence because a successful challenge "would advance the date of his eligibility for release from present incarceration." Garlotte v. Fordice, 115 S.Ct. 1948, 1952 (1995).
III. Applicable Legal Standards
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not be used to raise claims of legal error in conviction or sentencing, but are limited to challenges regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998).
A federally convicted person may challenge his conviction and sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the court which sentenced him. Indeed, a § 2255 motion is ordinarily the "exclusive means for a federal prisoner to attack his conviction." Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). However, the statute generally limits a prisoner to one challenge of his conviction and sentence under § 2255. A prisoner may not file a "second or successive" motion unless a panel of the appropriate court of appeals certifies that such motion contains either 1) newly discovered evidence "sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant ...