United States District Court, S.D. Illinois
TRACY L. PARKER, Petitioner,
B. TRUE, Respondent.
MEMORANDUM AND ORDER
L. Parker, an inmate in the custody of the BOP, filed a
petition for writ of habeas corpus under 28 U.S.C.
§2241. (Doc. 1).
was sentenced as an armed career criminal under 18 U.S.C.
§ 924(e). Relying on Mathis v. United States,
136 S.Ct. 2243 (2016), he argues that he is entitled to
habeas relief because he does not have three prior
convictions for violent felonies.
Facts and Procedural History
September 28, 2000, Parker pleaded guilty to one count of
possession of a firearm by a convicted felon in the Central
District of Illinois. United States v. Parker, No.
00-CR-20028-MPM (C. D. Ill.). Because he had at least three
prior convictions for violent felonies, he was sentenced as
an armed career criminal under 18 U.S.C. § 924(e). The
government moved for a downward departure, and Parker was
sentenced to 150 months imprisonment. Doc. 18, Ex. 1, Docket
Sheet from No. 00-CR-20028-MPM.
presentence investigation report stated that Parker qualified
as an Armed Career Criminal because he had eight prior
convictions for violent offenses. The report lists
convictions under Illinois law for four burglaries, two
counts of residential burglary, one aggravated battery, and
one arson. The report does not specify which of the eight
prior convictions the court should rely on in finding that
Parker was an Armed Career Criminal. Doc. 18, p. 8.
did not file a direct appeal. He file a motion under 28
U.S.C. § 2255 which was denied in February 2015.
Parker v. United States, No. 14-cv-2131-DGB (C. D.
150 month sentence has expired. See, Doc. 18, p. 2, n. 1.
However, he also pleaded guilty in September, 2002, to
charges of conspiracy to escape and attempted escape. Those
charges arose out of a scheme to escape from custody while he
was awaiting sentencing on the felon in possession charge. He
was sentenced to 48 months imprisonment on each charge, to
run consecutively to each other and to the 150 month sentence
on the felon in possession conviction. See, U.S. v.
Parker, 368 F.3d 963 (7th Cir. 2004).
habeas purposes, consecutive sentences are viewed in the
aggregate. Parker is still “in custody” and can
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, 115 S.Ct. 1948, 1952 (1995).
concedes that Mathis is a case of statutory
construction which applies retroactively to cases on
collateral review. Doc. 18, p. 6. Accordingly,
petitioner's argument fits within the savings clause of
28 U.S.C. § 2255(h). See, In re Davenport, 147
F.3d 605, 611 (7th Cir. 1998).
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), imposes a mandatory minimum sentence of 15
years on a person who violates 18 U.S.C. § 922(g) and
who has three prior convictions for a violent felony or a
serious drug offense. A violent felony is a crime punishable
by more than one year of imprisonment that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another” or “is
burglary, arson, or extortion, [or] involves use of
explosives.” § 924(e)(2)(B).
determining whether a prior crime counts as a predicate for
purposes of the ACCA, a court uses a “categorical
approach, ” looking not to the facts of the prior crime
but to the statutory elements of the prior conviction.
Mathis, 136 S.Ct. at 2248. A prior crime qualifies
as an ACCA predicate “if its elements are ...