United States District Court, C.D. Illinois, Peoria Division
DANIEL O. EL, Petitioner,
ACTING WARDEN of FCI PEKIN, Respondent.
ORDER & OPINION
BILLY McDADE United States Senior District Judge
matter is before the Court on Daniel O. El's Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc.
1). The matter has been fully briefed and is ready for
disposition. For the reasons stated below, the Court grants
currently incarcerated at the Federal Correctional
Institution in Pekin, Illinois. On September 3, 2009, El pled
guilty before this Court to being a prohibited person in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). (Doc. 11, United States v. El, No.
09-cr-10068). The Presentence Investigation Report
(“PSR”) identified three prior violent felonies
that made El subject to an enhanced sentence under the United
States Sentencing Guidelines § 4B1.4: (i) two separate
armed robbery convictions and (ii) a conviction for Illinois
residential burglary. (Doc. 13 at 6, United States v.
El, No. 09-cr-10068). The United States Sentencing
Guideline § 4B1.4 applies in the case of a defendant
subject to an enhanced sentence under 18 U.S.C. §
924(e), the Armed Career Criminal Act (“ACCA”).
This Court found that El did indeed qualify as an armed
career criminal based on those convictions and sentenced him
to the mandatory minimum sentence of 180 months. (Doc. 15 at
1, United States v. El, No. 09-cr-10068).
guilty by way of a written plea agreement in which he
ostensibly (as shall be seen) agreed to waive any right to
collaterally attack his conviction and sentence. (Doc. 11 at
4-5, United States v. El, No. 09-cr-10068). El also
acknowledged that he understood and agreed that although the
statutory maximum for violating 18 U.S.C. § 922(g) was
120 months, if he was found to have three or more prior
convictions for a violent felony, the conviction would carry
a mandatory minimum sentence of fifteen years (180 months)
and a maximum sentence of life in prison. (Doc. 11 at 3,
United States v. El, No. 09-cr-10068).
not appealed his sentence. However, El did file a motion to
request counsel (Doc. 23, United States v. El, No.
09-cr-10068), which this Court granted, treated as a motion
under 28 U.S.C. § 2255, and then allowed to be withdrawn
brings the instant petition for habeas corpus under 28 U.S.C.
§ 2241. (Doc. 1). He contends the law has changed since
he was sentenced and the law has recognized that his Illinois
conviction for residential burglary is not a generic burglary
under the Armed Career Criminal Act and therefore, his
sentence as an armed career criminal must be corrected.
prisoners like El who wish to collaterally attack their
convictions or sentences ordinarily must generally do so
under 28 U.S.C. § 2255. Brown v. Rios, 696 F.3d
638, 640 (7th Cir. 2012). They may petition under 28 U.S.C.
§ 2241 only in the rare circumstance in which the remedy
provided under § 2255 “is inadequate or
ineffective to test the legality of his detention.”
See 28 U.S.C. § 2255(e) (which is often
referred to as “the Savings Clause”). The mere
fact that a petitioner's claim would be a second or
successive § 2255 motion does not render § 2255
inadequate or ineffective. See In re Davenport, 147
F.3d 605, 609-10 (7th Cir. 1998).
Waiver of the Right to Collateral Attack
Government contends El's petition should be rejected
because El agreed to waive his right to collaterally attack
his sentence and conviction. El's plea agreement
contained the following waiver:
The defendant also understands that he has a right to attack
the conviction and/or sentence imposed collaterally on the
grounds that it was imposed in violation of the Constitution
or laws of the United States; that he received ineffective
assistance from his attorney; that the Court was without
proper jurisdiction; or that the conviction and/or sentence
was otherwise subject to collateral attack. The defendant
understands such an attack is usually brought through a
motion pursuant to Title 28, United States Code, Section
2255. The defendant and the defendant's attorney have
reviewed Section 2255, and the defendant understands his
rights under the statute. Understanding those rights, and
having thoroughly discussed those rights with the
defendant's attorney, the defendant knowingly and
voluntarily waives his right to collaterally attack the
conviction and/or sentence. The defendant's attorney
has fully discussed and explained the defendant's right
to attack the conviction and/or sentence collaterally with
the defendant. The defendant specifically acknowledges that
the decision to waive the right to challenge any later claim
of the ineffectiveness of the defendant's counsel was
made by the defendant alone notwithstanding any advice the
defendant may or may not have received from the
defendant's attorney regarding this right. Regardless of
any advice the defendant's attorney may have given the
defendant, in exchange for the concessions made by the United
States in this plea agreement, the defendant hereby knowingly
and voluntarily waives his right to collaterally attack the
conviction and/ or sentence. The rights waived by the
defendant include his right to challenge the amount of any
fine or restitution, in any collateral attack, including, but
not limited to, a motion brought under Title 28, United
States Code, Section 2255.
(Doc. 11 at 4-5, United States v. El, No.
09-cr-10068) (emphasis added). Waivers of collateral attacks
are generally enforceable. Hurlow v. United States,
726 F.3d 958, 964 (7th Cir. 2013). The Seventh Circuit has
recognized few exceptions to the general enforceability,
which include: involuntary plea agreements, the district
court's reliance on an impermissible factor (like race),
instances where the sentence exceeds the statutory maximum,
or the defendant claims ineffective assistance of counsel
during the negotiation of the plea agreement. Keller v.
United States, 657 F.3d 675, 681 (7th Cir. 2011)
contends that waiver does not apply to him because this is a
situation where the sentence imposed exceeds the statutory
maximum. He contends that an error in determining that a
defendant has three prior convictions for serious drug
offenses or violent felonies for purposes of the ACCA
resulting in a sentence beyond the statutory maximum sentence
qualifies for an exception to the general rule of enforceable
waiver of collateral review rights. El acknowledges that the
Seventh Circuit has rejected this argument in United
States v. Carson, 855 F.3d 828, 830-31 (7th Cir. 2017)
under similar circumstances present here. Carson
explains that where the argument raised in apparent violation
of a waiver must be decided on the merits in order to
determine whether the sentence is unlawful, then the waiver
would be eviscerated. Thus, such exceptions to waiver clauses
are generally disallowed. Again, El ...