United States District Court, S.D. Illinois
TRACY L. PARKER, Petitioner,
MAUREEN P. BAIRD Respondent.
MEMORANDUM AND ORDER
R. Herndon United States District Judge.
Tracy L. Parker is in the custody of the Bureau of Prisons,
housed at the United States Penitentiary in Marion, Illinois.
Petitioner pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), and was
sentenced in 2000 to a 150-month term of imprisonment.
United States v. Parker, No. 00-cr-20028-MPM-1 (CD.
Ill. 2000). Parker was sentenced as an Armed Career Criminal
under 18 U.S.C. § 924(e), based on eight prior Illinois
convictions for “violent” felonies, including
burglary, residential burglary, and aggravated burglary.
Although petitioner has numerous prior convictions, he
alleges that his enhancement was specifically based on 1)
Illinois Burglary, 94-CF-97 (1994); 2) Illinois Aggravated
Battery, 92-CF- 48 (1992); and 3) Illinois Arson, 94-CF-99
petitioner's original 150 month sentence has been
discharged. However, in 2002, petitioner was sentenced to an
additional 96 months for attempting to escape while awaiting
sentencing on the felon in possession charge. See United
States v. Parker, 368 F.3d 963 (7th Cir. 2004). Although
petitioner's original sentence has expired, for habeas
purposes, consecutive sentences are viewed in the aggregate.
Petitioner is still considered “in custody” and
may 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, 515 U.S. 39, 41 (1995).
petitioner attempted to bring a habeas corpus action pursuant
to 28 U.S.C. § 2241 in Case No. 13-cv-1110-DRH-CJP. That
case was ultimately dismissed because petitioner had not
pursued a remedy pursuant to 28 U.S.C. § 2255. (Doc. 13,
Case No. 13-1110).
has now filed the present action, again pursuant to 28 U.S.C.
§ 2241, seeking to overturn his sentence. This time, he
represents that he has brought an action challenging his
sentence pursuant to § 2255 by alleging that
Descamps v. United States, 133 S.Ct. (2013), and
that the § 2255 action was denied as untimely and
without merit. See Parker v. United States of
America, 14-cv-2131 (C.D. Ill. 2015). Petitioner also
contends that he is actually innocent of being an Armed
Career Criminal because the sentencing court erroneously
treated his burglary conviction as a qualifying
“violent” felony. Petitioner further contends
that under the recent decision in Mathis v. United
States, 136 S.Ct. 2243 (2016), the Illinois burglary
statute should be found indivisible, and therefore broader
than the generic crime of burglary.
Mathis found that a prior conviction does not
qualify as the generic form of a predicate violent felony
offense listed in the ACCA if an element of the crime of
conviction is broader than an element of the generic offense
because the crime of conviction enumerates various
alternative factual means of satisfying a single element. 136
S.Ct. at 2251. Petitioner argues that the Illinois burglary
statute that served as a predicate for his ACCA sentence is
similar, if not identical, to the Iowa burglary statute at
issue in Mathias.
of the Rules Governing Section 2254 cases in United States
District Courts provides that upon preliminary consideration
by the district court judge, “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to
notify the petitioner.” Rule 1(b) of those Rules gives
this Court the authority to apply the rules to other habeas
a person may challenge his federal conviction only by means
of a motion brought before the sentencing court pursuant to
28 U.S.C. § 2255, and this remedy normally supersedes
the writ of habeas corpus. A § 2241 petition by a
federal prisoner is generally limited to challenges to the
execution of the sentence. Valona v. United States,
138 F.3d 693, 694 (7th Cir. 1998); Atehortua v.
Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Federal
prisoners may utilize § 2241, however, to challenge the
legality of a conviction or sentence in cases pursuant to the
“savings clause” of § 2255(e). The savings
clause allows a petitioner to bring a claim under §
2241, where he can show that a remedy under § 2255 is
inadequate or ineffective to test the legality of his
detention. Id. See also United States v.
Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
Court of Appeals for the Seventh Circuit has held that §
2255 is only inadequate or ineffective when three
requirements are satisfied: 1) the petitioner relies on a new
case of statutory interpretation rather than a constitutional
decision; 2) the case was decided after his first § 2255
motion but is retroactive; and 3) the alleged error results
in a miscarriage of justice. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012). “'Inadequate or
ineffective' means that ‘a legal theory that could
not have been presented under § 2255 establishes the
petitioner's actual innocence.'' Hill v.
Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (citing
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir.
2002)); In re Davenport, 147 F.3d 605, 608 (7th Cir.
petitioner may utilize the “savings clause” of
§ 2255(e) depends on whether Mathis, which is
clearly a statutory interpretation case, Dawkins v.
United States, 829 F.3d 549, 550 (7th Cir. 2016), is
retroactive. It appears that the Court of Appeals for the
Seventh Circuit has not yet addressed whether cases seeking
to invoke Mathis fall under the savings clause,
although Dawkins suggests that they may. 829 F.3d at
551 (“An independent claim based on Mathis
must be brought, if at all, in a petition under 28 U.S.C.
§ 2241.”) The government is therefore directed to
submit a response addressing this issue. Furthermore, there
is insufficient information before the Court upon which to
conclude that dismissal at this preliminary stage pursuant to
Rule 4 is appropriate; although Petitioner has thoroughly
summarized the procedural history of his cases, the records
themselves are not before the Court. Therefore respondent
Baird will be required to respond or otherwise plead.
HEREBY ORDERED that respondent shall answer the petition or
otherwise plead within thirty days of the date this order is
entered. This preliminary order to respond does not, of
course, preclude the State from making whatever waiver,
exhaustion, or timeliness argument it may wish to present.
Service upon the United States Attorney for the Southern
District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois shall constitute sufficient service.
FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford
J. Proud for further pre-trial proceedings.
FURTHER ORDERED that this entire matter be REFERRED to United
States Magistrate Judge Clifford J. Proud for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §