United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY McDADE United States Senior District Judge
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
TO PROCEED IN FORMA PAUPERIS
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.
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).
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
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.
for Habeas Corpus Relief
and Procedural History
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.
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
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.
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. ...