United States District Court, S.D. Illinois
LARRY D. WILSON, Petitioner,
T.G. WERLICH, Respondent.
R. Herndon, Judge
currently incarcerated in Greenville Federal Correctional
Institution, brings this habeas corpus action pursuant to 28
U.S.C. § 2241 to challenge his enhanced sentence as a
career offender pursuant to the Armed Career Criminal Act
(“ACCA”). United States v. Wilson, No.
07-cr-20090-MPM (C.D. Ill.) (“criminal case”).
The Petition was filed on July 25, 2017. Petitioner requests
resentencing without the ACCA enhancement.
the Court would conduct a brief review of the Petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases.
However, it has come to the Court's attention that this
action may be duplicative of another currently pending action
in the Central District. For reasons explained below,
Petitioner is DIRECTED to SHOW CAUSE why this case should not
be dismissed without prejudice as duplicative of Case No.
2:15-cv-2266-SLD (C.D. Ill.) (“15-2266”).
argues that the Supreme Court's recent decision in
Mathis v. United States, 136 S.Ct. 2243 (U.S. 2016)
suggests that his enhanced sentence under the ACCA is
unconstitutional. (Doc. 1, p. 6). Specifically, he argues
that his underlying conviction for Illinois Residential
Burglary should not have been considered under the ACCA.
Id. Petitioner requests that the Court vacate his
sentence and resentence him without the ACCA. (Doc. 1, p. 8).
has informed the Court that he has another habeas case
pending in the Central District. A review of that case's
docket shows that Petitioner has been appointed
an attorney, and that the attorney filed an amended petition
on June 21, 2016. (15-2266, Doc. 9). The Amended Petition
filed by the attorney specifically argues that “Mr.
Wilson's residential burglary conviction no longer
qualifies as a violent felony and he is not an armed career
criminal. Furthermore the armed bank robbery offense
underlying the § 924(c) conviction categorically fails
to qualify as a crime of violence within the meaning of [the
ACCA, ] 18 U.S.C. § 924(c)(3)(A).” (15-2266, Doc.
9, pp. 1-2). The Mathis decision came out a mere 2
days after the Amended Petition was filed. 136 S.Ct. 2243.
The government filed a Response to the Amended Petition on
September 2, 2016, and Petitioner's counsel filed a reply
on September 20, 2016. (15-2266, Doc. 12, Doc. 13). The Reply
specifically argues that Mathis is relevant to
determining whether Petitioner's residential burglary
conviction is an enumerated burglary. (15-2266, Doc. 13, p.
2). It also argues that the substantive rule announced in
Mathis would apply when ruling on a timely issue
based on Johnson v. United States, 135 S.Ct. 2551
(U.S. 2015). (15-2266, Doc. 13, p. 9). To date, no decision
has been entered by the Central District on Petitioner's
§ 2255 Petition.
October 13, 2016, despite being represented by counsel,
Petitioner began filing pro-se motions with the Central
District. (15-2266, Doc. 14). On February 13, 2017,
Petitioner filed a “Notice of Favorable Recent Changes
in the Law.” (15-2266, Doc. 16). Among other issues,
the “Notice” points to Mathis, and
argues that it is permissible to consider Mathis in
a first-time § 2255 Petition. (15-2266, Doc. 16, pp.
6-7). Since filing that Motion, Petitioner has brought 2
motions to voluntarily dismiss his Central District case.
(15-2266, Doc. 18, 19). To date, the Central District has not
ruled on any of Petitioner's pro-se motions or otherwise
a prisoner may challenge his federal conviction or sentence
only by means of a § 2255 motion brought before the
sentencing court, and this remedy typically supersedes the
writ of habeas corpus. Brown v. Caraway, 719 F.3d
583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012)). In this case, Petitioner is
clearly attacking his sentence. In under to proceed under
§ 2241, he is required to show that § 2255 is not
available to him. But unlike the typical § 2241
litigant, Petitioner's § 2255 proceeding has not
concluded. No ruling has been issued on his § 2255
Motion, or the motions he has filed since October 2016.
“savings clause” under § 2255(e) allows a
federal prisoner to file a petition under § 2241, if the
remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See
28 U.S.C. § 2255(e). In considering what it means to be
“inadequate or ineffective, ” the Seventh Circuit
has held that a federal prisoner should be permitted to seek
relief under § 2241 “only if he had no reasonable
opportunity to obtain earlier judicial correction of a
fundamental defect in his conviction or sentence because the
law changed after his first § 2255 motion.” In
re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). A
federal prisoner must meet 3 criteria in order to invoke the
Savings Clause and obtain collateral relief pursuant to
§ 2241. First, a prisoner “must show that he
relies on a [new] statutory-interpretation case rather than a
constitutional case;” second, he “must show that
he relies on a retroactive decision that he could not have
invoked in his first § 2255 motion;” and third,
“[the] sentence enhancement [must] have been a grave
enough error to be deemed a miscarriage of justice corrigible
therefore in a habeas corpus proceeding.” Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (citations
omitted) (internal quotation marks omitted).
questionable whether Petitioner has actually triggered the
savings clause because he appears incapable of meeting the
second element. He cannot show that § 2255 is
ineffective to raise this issue because his § 2255 case
is still on-going and, more importantly, Petitioner has
actually raised the issue that he seeks to raise in this case
in his § 2255 proceeding. Both Petitioner's
appointed counsel and Petitioner himself have attempted to
draw the Central District's attention to Mathis
and its potential implications on Petitioner's sentence.
They both have also argued that Petitioner's Illinois
burglary conviction should not have been counted for purposes
of applying the ACCA. It would be inconsistent for Petitioner
to argue that he could not invoke Mathis on §
2255 when a review of the docket shows that he did invoke
the Court may dismiss litigation “for reasons of wise
judicial administration whenever it is duplicative of a
parallel action already pending in . . . federal
court.” Serlin v. Arthur Andersen & Co., 3
F.3d 221, 223 (7th Cir. 1993) (quoting Colorado River
Water Conservation District v. United States, 424 U.S.
800, 817 (1976)). The determination is discretionary, and
district courts are given latitude to exercise that
discretion, but generally, a suit will be considered
duplicative if the claims, parties, and relief requested do
not significantly vary between the actions. McReynolds v.
Merrill Lynch Co. Inc., 694 F.3d 873, 888-89 (7th Cir.
2012); Lancaster v. Fairman, No. 83 C. 8895, 1985 WL
990 at *1 (N.D. Ill. April 25, 1985) (dismissing habeas
petition as duplicative). Here the claim is clearly
duplicative, as Petitioner is behind both suits, has raised
the same arguments in both suits, and requests vacation of
his original sentence and resentencing in both suits.
Judicial economy considerations therefore appear to justify
alternative, the Court may also stay cases deemed
duplicative. Central States, Southeast and Southwest
Areas Pension Fund v. Paramount Liquor Co., 203 F.3d
442, 444 (7th Cir. 2000). Outright dismissal is appropriate
when it is clear that the same party filed all of the suits,
provided that it is apparent that dismissal will not
adversely affect any litigant's interests. Id.
at 444-45. As Petitioner has brought both actions under
discussion here and the actions raise identical issues,
dismissal appears most appropriate.
course, Petitioner has notified this Court of his intention
to dismiss the Central District case. However, Petitioner is
beyond the time where he will be permitted to dismiss his
suit without leave of court; his § 2255 is fully briefed
and ready for disposition. He cannot dismiss the action
without leave of the court, which it has not yet granted.
Courts will also frequently limit the ability of litigants to
go around their recruited counsel by striking any motions
filed pro-se while a litigant is represented. As the Central
District has ...