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EL v. Acting Warden of FCI Pekin

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

September 7, 2017

DANIEL O. EL, Petitioner,
v.
ACTING WARDEN of FCI PEKIN, Respondent.

          ORDER & OPINION

          JOE BILLY McDADE United States Senior District Judge

         This 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 the petition.

         Background

         El is 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).

         El pled 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).

         El has 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 without prejudice.

         El now 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.

         Legal Standards

         Federal 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).

         Discussion

         I. Waiver of the Right to Collateral Attack

         The 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) (citations omitted).

         El 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 ...


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