Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burton v. Krueger

United States District Court, C.D. Illinois, Peoria Division

September 13, 2016

JOSEPH BURTON, Plaintiff,
v.
JEFFERY E. KRUEGER, WARDEN, Defendant.

          ORDER & OPINION

          JOE BILLY McDADE United States Senior District Judge

         This matter is before the Court on Petitioner Joseph Burton's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) and a Motion to Proceed in forma pauperis (Doc. 2). The Court has considered the grounds set forth in the Petition (Doc. 1), and cannot find that they are without merit on this initial review. Respondent must file a response to what remains of the Petition within fifty-six days of this order. Additionally, for the reasons stated below, Petitioner's motion to proceed in forma pauperis is granted.

         MOTION TO PROCEED IN FORMA PAUPERIS

         Petitioner filed a Motion to Proceed in forma pauperis concurrently with his § 2241 Petition (Doc. 2). He asserts in his Motion that his is unemployed and has no assets. (Doc. 2 at 1). The trust fund account ledgers received by the Court show that Petitioner regularly has a very low monthly balance in his account, but that he had been receiving a payroll deposit once a month and occasionally receives deposits from Western Union. (Doc. 3). His payroll ranges from $7.54 to $34. His Western Union deposits range from $20 to $50. Id. The most recent information available to the Court shows a balance of $0.16 on August 31, 2016. Id. Thus, his request to proceed without prepayment of the applicable filing fee is granted, and the Court has reviewed his Petition prior to receiving the applicable fee.

         However, petitioners are required to pay what he is capable of paying. See Longbehn v. United States, 169 F.3d 1082, 1083 (7th Cir. 1999) (“All that permission to proceed in forma pauperis has ever meant is that the fees need not be pre-paid.”). Partial prepayment requirements are discretionary when the Prison Litigation Reform Act (PLRA) does not apply. Id. The use of discretionary prepayment requirements is important because “every litigant has a legal responsibility to pay the filling and docketing fees to the extent feasible.” Id. See also Lumbert v. Ill. Dep't of Corr., 827 F.2d 257, 259 (7th Cir. 1987).

         The Court therefore directs Petitioner to pay $1.40 as a partial filing fee. The Court notes that the average balance in Petitioner's account over the past six months is $2.79. Id. This partial filing fee is approximately half of Petitioner's average balance. Although half may seem substantial, the Court notes that Petitioner has received a deposit greater than that amount in his account eight times over the past six months-seven of these deposits were for more than $20 and would easily satisfy the filing requirement.

         However, since August 20, 2016, the current balance in Petitioner's account has been $0.16. Therefore, if, at the time the trust fund department at Petitioner's institution receives this Order, Petitioner does not have that much money in his account, the trust fund department shall send 20% of Petitioner's current balance. Thereafter, each time the balance in Petitioner's account exceeds $10.00, Petitioner's custodian shall forward to the Clerk, in monthly payments, 20% of the preceding month's income credited to Petitioner's account until the $1.40 filing fee is paid.

         Petition for Habeas Corpus Relief

         Background and Procedural History

         On June 24, 2009, Petitioner Joseph Burton was found guilty of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). United States v. Burton, No. 08-cr-1055-1, (N.D. Ill. Sept. 9, 2009). On Sept. 9, 2009, the sentencing judge concluded that he was an Armed Career Criminal, as defined in 18 U.S.C. § 924(e). (Doc. 1 at 9). The judge sentenced him to 235 months of imprisonment. Burton, No. 08-cr-1055-1. The court's decision was based on the fact that Burton had more than three prior convictions that met the definition of a “violent felony” pursuant to the Armed Career Criminal Act (“ACCA”). Burton v. United States, No. 16-2684, slip op. at 1. These included Illinois convictions for residential burglary and burglary. Id.

         Petitioner filed a § 2255 Motion to vacate, set aside, or correct his sentence in 2011 based on ineffective assistance of counsel. United States v. Burton, No. 1:11-cv-00522 (N.D. Ill. Nov. 22, 2011). This petition was denied. In 2016, Burton filed with the United States Court of Appeals for the Seventh Circuit an application to file a second or successive § 2255 motion pursuant to 28 U.S.C. § 2244(b)(3). Burton v. United States, No. 16-1943 (7th Cir. May 25, 2016). In the application, he sought to challenge his sentence under Johnson v. United States, 135 S.Ct. 2551 (2015). Burton, No. 16-2684, slip op. at 1. The Seventh Circuit rejected his argument and concluded that Illinois residential burglary was equivalent to generic burglary. Id. The Petitioner then filed a second application to file a second or successive § 2255 motion with the Seventh Circuit. Id. In this application, he sought to challenge his sentence under Johnson and Mathis v. United States, 136 S.Ct. 2243 (2016). Id. The Seventh Circuit denied the application on July 21, 2016, as it concluded that Petitioner could not succeed on a Johnson claim, as they determined in his first application for a second or successive § 2255 motion. Id.

         The Seventh Circuit did not consider Petitioner's Mathis claim. Petitioner's Mathis claim argues that the Illinois burglary statute is similarly infirm to the one from Mathis. Id. at 7. Instead of considering the claim, the Seventh Circuit instructed Petitioner that any independent claim brought under Mathis must be brought in a petition under 28 U.S.C. § 2241. Id.

         Petitioner has now brought that § 2241 Petition. In it, he claims that his sentence is invalid pursuant to Mathis. In Mathis, the Supreme Court concluded that a conviction for burglary in Iowa cannot serve as a predicate crime under the ACCA. 136 S.Ct. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.