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Parker v. B. True

United States District Court, S.D. Illinois

February 13, 2018

TRACY L. PARKER, Petitioner,
v.
B. TRUE, Respondent.[1]

          MEMORANDUM AND ORDER

         Tracy 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).

         Petitioner 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.

         Relevant Facts and Procedural History

         On 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.[2]

         The 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.

         Parker 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. Ill).

         Present Custody Status

         Petitioner's 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).

         For 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).

         Applicable Legal Standards

         Respondent 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).

         The 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).[3]

         In 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 ...


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