United States District Court, S.D. Illinois
LARRY D. WILSON, # 08456-026, Petitioner,
T.G. WERLICH, Respondent.
MEMORANDUM AND ORDER
G. Wilkerson, United States Magistrate Judge.
25, 2017, Petitioner Larry D. Wilson filed his pro
se Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. (Doc. 1). Wilson is incarcerated at
FCI-Greenville, Illinois, serving a 264-month sentence. This
Court stayed the case pending the disposition of Wilson's
motion for relief pursuant to 28 U.S.C. § 2255 in the
Central District of Illinois. (Doc. 11). The § 2255
motion was ultimately voluntarily dismissed, and Wilson filed
an Amended Petition (Doc. 16) in this action on March 5,
2019. Wilson invokes Mathis v. United States, - U.S.
-, 136 S.Ct. 2243 (2016), to challenge the career-offender
sentence enhancement for one of the three offenses to which
he pled guilty. He argues that his 1985 Illinois conviction
for residential burglary no longer qualifies as a predicate
offense for the enhancement because the statutory definition
of a “dwelling” at the time encompassed locations
that were not included in the definition of “generic
burglary.” He seeks to be resentenced without the
enhancement, and argues that he is entitled to immediate
release from custody.
has answered the Petition (Doc. 28), and Wilson has replied
(Doc. 30); the matter is ripe for disposition. For the
reasons discussed below, the Amended Petition (Doc. 16) shall
Facts and Procedural History
August 2007, Wilson and a co-defendant were indicted on 5
counts relating to a bank robbery in the Central District of
Illinois, No. 07-cr-20090-MPM-DGB. (Doc. 16, p. 1; Doc.
28-1). On March 3, 2008, Wilson entered a negotiated guilty
plea to 3 counts: Count 1 for armed bank robbery (18 U.S.C.
§ 2113(a) and (d)); Count 2 for possession of a firearm
by a felon (18 U.S.C. § 922(g)); and Count 4 for
carrying and using a firearm during a crime of violence (18
U.S.C. § 924(c)). (Doc. 27-1; Doc. 28-3). Under the
binding plea agreement, Wilson was sentenced to a total of
264 months, consisting of concurrent 180-month terms on
Counts 1 and 2, plus a consecutive 84 months for Count 4.
arriving at the above sentences, the court adopted the
parties' agreement that as to Count 2 (felon in
possession) Wilson qualified as an Armed Career Criminal
(“ACC”) pursuant to 18 U.S.C. § 924(e). This
subjected him to a mandatory minimum 15-year (180-month)
prison term for that count based on having 3 previous
convictions for either drug offenses or violent felonies.
With the ACC enhancement, the statute carried an upper limit
of a life sentence. (Doc. 27-1, pp. 1, 4; Doc. 28-3, pp. 5,
7). Wilson had earlier been convicted of 3 violent felonies
as defined in 18 U.S.C. § 924(e)(2)(B), including
residential burglary (Vermilion County No. 85-CF-329); and 2
robberies (Vermilion County No. 85-CF-358, and Champaign
County No. 85-CF-1556). (Doc. 27-1, p. 9). Absent the
career-criminal enhancement, the firearm possession charge
would carry a maximum 10-year term of imprisonment. (Doc.
28-3, p. 5).
faced a maximum 25-year sentence on the armed bank robbery
count (Doc. 28-3, p. 5), and a mandatory consecutive 7-year
(84-month) sentence on Count 4 for using or carrying a
firearm during the robbery. (Doc. 28-3, p. 6). The statutory
range for Count 4 also exposed Wilson to a potential life
sentence. (Doc. 27-1, p. 1).
on the ACC enhancement for Count 2, Wilson and the government
agreed that his statutory mandatory minimum sentence for the
combined convictions was 22 years (264 months). (Doc. 28-3,
p. 8). The parties further agreed that this minimum exceeded
the applicable advisory sentencing guideline range, thus the
advisory range became 264 months/22 years. Id. The
Presentence Report (“PSR”) calculated
Wilson's advisory guideline range to be 135-168
months' incarceration based on a total offense level of
30 and criminal history category of IV. (Doc. 27-1, p 24).
However, because the statutory minimum sentence was 180
months (for Count 2), that became the guideline sentence for
the bank robbery and firearm possession counts. Id.
The PSR further noted that the mandatory-consecutive sentence
for Count 4 would be imposed independently according to the
did not file an appeal. (Doc. 16, p. 3). In November 2015, he
filed a motion under 28 U.S.C. § 2255 challenging his
sentence on the basis of ineffective assistance of counsel.
Id.; Wilson v. United States, No.
15-cv-2266-SLD (C.D. Ill.). He amended the motion in 2016 to
add a challenge based on Johnson v. United States,
135 S.Ct. 2551 (2015). (Doc. 16, p. 3). Appointed counsel
further amended the motion, adding a challenge to the use of
the residential burglary conviction as an ACC predicate
offense. Id. After the Supreme Court announced the
Mathis decision, Wilson ultimately concluded that
his claim based on that case would have to be raised in a
§ 2241 proceeding, and moved for voluntary dismissal of
his § 2255 motion in the Central District of Illinois.
(Doc. 16, pp. 4-5). This action followed.
Asserted for Habeas Relief
argues that his 1985 Illinois residential burglary conviction
was improperly counted as a predicate offense to enhance his
sentence for Count 2 (possession of firearm by a felon). He
relies on the analysis outlined in Mathis v. United
States, __ U.S. __, 136 S.Ct. 2243 (2016), and
United States v. Haney, 840 F.3d 472, 476 (7th Cir.
2016) (concluding that conviction under 1970s version of
Illinois burglary statute, which applied to vehicles such as
“housetrailer[s], watercraft, aircraft, motor
vehicle[s] . . . [and] railroad car[s], ” could not
serve as an ACC predicate), The 1985 Illinois residential
burglary statute stated: “A person commits residential
burglary who knowingly and without authority enters the
dwelling place of another with the intent to commit therein a
felony or theft.” Ill. Rev. Stat. ch. 38, ¶ 19-3
(1983). At that time, the statutory definition of
“dwelling” was “a building or portion
thereof, a tent, a vehicle, or other enclosed space which is
used or intended for use as a human habitation, home or
residence.” Ill. Rev. Stat. ch. 38, ¶ 2-6
(1983); People v. Bales, 108 Ill.2d 182,
187, 483 N.E.2d 517, 519 (1985); People v. Edgeston,
611 N.E.2d 49, 55-56 ( Ill. App. 1993). Wilson claims that
because the statute included tents and vehicles as
“dwellings, ” it criminalized more conduct than
is outlawed in the generic definition of burglary,
it was therefore improper for his 1985 crime to be used to
enhance his sentence from the 10-year maximum to a 15-year
for Denial of Relief
counters that Wilson's written plea agreement included a
waiver of his right to bring a collateral attack on his
conviction or sentence, and that this waiver bars him from
seeking habeas corpus relief in this action. (Doc. 28, pp.
5-7; Doc. 28-3, pp. 11-13; 17-18). Respondent further argues
that Wilson's habeas claim fails to satisfy the
requirements of the savings clause in 28 U.S.C. §
2255(e). (Doc. 28, pp. 7-13). Finally, he asserts that even
if the Court should find that Wilson's Petition fits
within the savings clause, he is not entitled to immediate
release. (Doc. 28, pp. 13-15).