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Wilson v. Werlich

United States District Court, S.D. Illinois

June 19, 2019

LARRY D. WILSON, # 08456-026, Petitioner,
v.
T.G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          Donald G. Wilkerson, United States Magistrate Judge.

         On July 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.

         Respondent 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 be denied.

         Relevant Facts and Procedural History

         Trial Court Proceedings

         In 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. (Doc. 28-4).[2]

         In 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).

         Wilson 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).

         Based 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 statute. Id.

         Post-Conviction Proceedings

         Wilson 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.

         Grounds Asserted for Habeas Relief

         Wilson 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).[3] 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);[4] 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, [5] and it was therefore improper for his 1985 crime to be used to enhance his sentence from the 10-year maximum to a 15-year minimum.

         Grounds for Denial of Relief

         Respondent 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).

         Applicabl ...


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