Box v. Kruegor
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 11/10/2016: IT IS ORDERED:1) Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is GRANTED; 2) Petitioner's armed career criminal enhanced sentence imposed by the Northern District of Illinois in No. 3:08-cr-50031-1 is VACATED; 3) Respondent SHALL deliver Petitioner to Northern District of Illinois for resentencing; 4) Respondent SHALL release Petitioner from custody if he is not resentenced within 90 d ays; 5) The Clerk is DIRECTED to enter Final Judgment hereon; 6) The Clerk is DIRECTED to send copies of this Order to Petitioner; Respondent; United States District Court of the Northern District of Illinois; and the Clerk of the United States District Court for the Northern District of Illinois for filing in No. 3:08-cr-50031-1. (SEE FULL WRITTEN ORDER AND OPINION) (JRK, ilcd)
E-FILED
Thursday, 10 November, 2016 04:02:15 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CURTIS BOX,
Petitioner,
v.
JEFFREY KRUEGER,
Respondent.
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Case No. 1:16-CV-1299-JBM
ORDER & OPINION
This matter is before the Court on Petitioner Curtis Box’s Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). For the reasons stated below,
the Petition is granted.
BACKGROUND AND PROCEDURAL HISTORY1
In August 2008, Petitioner pleaded guilty to possessing a firearm as a felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The court determined that Petitioner
was an armed career criminal under 18 U.S.C. § 924(e) (“ACCA”). The court found
that Petitioner had the following three prior violent felony convictions: 1) a 1985
conviction for general burglary in Winnebago County, Illinois; 2) a 1994 conviction
for residential burglary in Winnebago County, Illinois; and 3) a 2001 conviction for
aggravated battery in Kane County, Illinois. The court sentenced Petitioner to a 190
month term of imprisonment. Without the armed career criminal qualification,
Unless otherwise indicated, all facts are taken from Respondent’s Response to
Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 2).
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Petitioner would have faced a maximum term of ten years imprisonment. 18 U.S.C.
§ 924(a)(2).
In 2015, Petitioner filed a motion to reduce his sentence pursuant to 28 U.S.C.
§ 2255. United States v. Box, No. 3:15-cv-50231 (N.D. Ill. Sep. 24, 2015). Petitioner
argued that after Johnson v United States, 135 S. Ct. 2551 (2015), neither his
burglary nor his aggravated assault convictions were violent felonies under the
ACCA. The court denied Petitioner’s motion, because it found that Johnson did not
affect the determination of Petitioner’s previous convictions as violent felonies. The
court found that Petitioner’s burglary convictions were enumerated offenses under §
924(e)(2)(B)(ii). The court also found that Petitioner’s aggravated assault was a
violent felony under the force clause of § 924(e)(2)(B)(i). The United States Court of
Appeals for the Seventh Circuit denied Petitioner’s application for a certificate of
appealability. Box v. United States, No. 16-1194 (7th Cir. Apr. 1, 2016).
In June 2016, Petitioner filed an application with the Seventh Circuit for
permission to file a second or successive motion to vacate his sentence under § 2255
based on Mathis v. United States, 136 S. Ct. 2243 (2016). Box v. United States, No.
16-2546 (7th Cir. July 20, 2016). The Seventh Circuit denied authorization and
explained that Mathis was a case of statutory interpretation; therefore Plaintiff must
seek Mathis relief pursuant to 28 U.S.C. § 2241. Id.
Petitioner filed this present § 2241 challenging the validity of his sentence
after Mathis. In Mathis, the Supreme Court found that an Iowa burglary conviction
was not a predicate offense under the ACCA because the Iowa burglary statute was
overly broad compared to the generic burglary statute. 136 S. Ct. at 2243. Petitioner
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argues that his Illinois general conviction is similarly overbroad and can no longer
qualify as a predicate offense. (Doc. 1 at 12-14). The government agrees that his
Illinois general burglary no longer qualifies as a predicate offense and urges the Court
to grant Petitioner’s § 2241 Petition. (Doc. 2 at 3; Doc. 3 at 2).
LEGAL STANDARDS
Petitioner is challenging the validity of the sentence imposed by the district
court, and therefore would ordinarily be required to bring his claim as a § 2255 motion
rather than a § 2241 petition. See Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012)
(“28 U.S.C. § 2241 and 28 U.S.C. § 2255 provide federal prisoners with distinct forms
of collateral relief. Section 2255 applies to challenges to the validity of convictions
and sentences, whereas § 2241 applies to challenges to the fact or duration of
confinement.”); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). He may only petition
under 28 U.S.C. § 2241 if the remedy provided under § 2255 “is inadequate or
ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e) (which is
often referred to as “the Savings Clause”).
In In re Davenport, 147 F.3d 605 (7th Cir. 1998), the Seventh Circuit held that
collateral relief is available to a federal prisoner 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.” Id. at
611. A federal prisoner must meet three 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
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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).2
DISCUSSION
Petitioner meets all the Davenport requirements to prove that a § 2255 motion
is an inadequate or ineffective test to the legality of his sentence and may bring a
petition under § 2241. Because his general burglary conviction no longer qualifies as
a predicate act, the Court grants Petitioner’s Petition for Writ of Habeas Corpus.
Petitioner meets the first requirement because his Petition relies on the
Supreme Court’s decision in Mathis, which is one of statutory interpretation, not
constitutional analysis. Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016).
In Mathis, the Supreme Court found that Iowa’s burglary statute applied to a broader
range of locations than a generic burglary statute would. Mathis, 136 S. Ct. at 2250.
The United States Court of Appeals for the Seventh Circuit has recently found that
Illinois’s generic burglary statute3 is similarly overbroad. United States v. Haney, No.
16-1513, 2016 WL 6298695, at *2 (7th Cir. Oct. 27, 2016). Because these cases revolve
around statutory interpretation, Petitioner meets the first Davenport requirement.
The mere fact that Petitioner’s claim would be a second or successive § 2255 motion
does not render § 2255 inadequate or ineffective. See Davenport, 147 F.3d at 609-10.
Nor does the fact that a previous § 2255 motion was denied. Stirone v. Markley, 345
F.2d 473, 474 (7th Cir. 1965).
3 Petitioner’s prior conviction was for general burglary in 1985. Illinois’s 1985 general
burglary statute is materially identical to the 1973 general burglary statute in
Haney. Compare 38 Ill. Comp. Stat. § 19-1 (1985) with 38 Ill. Comp. Stat. § 19-1
(1973).
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Petitioner meets the retroactivity requirement because Respondent waives any
argument against such. In their Response, Respondent stated that they “waive any
argument we may have that Mathis did not establish a new rule that applies
retroactively on collateral review or that Box could have invoked the rule in an earlier
proceeding.” (Doc. 5 at 5). Respondent’s waiver of this issue allows the Court to rule
on the Petition. Hicks v. Stancil, 642 F. App’x 620, 620-21 (7th Cir. 2016) (allowing a
defendant to bring a § 2241 motion because the government waived any argument
that defendant must prove that a § 2255 motion would be inadequate); see also Brown
v. Rios, 696 F.3d 638, 640-41 (7th Cir. 2012) (finding that the court did not need to
determine whether the sentencing errors could be corrected in a habeas corpus
proceeding further because the government conceded the issue); Harris v. Warden,
425 F.3d 386, 388 (7th Cir. 2005) (finding that § 2255(e) does not diminish the court’s
subject-matter jurisdiction, because §§ 2241 and 2255 are remedial statutes, not
jurisdictional).
Lastly, Petitioner meets the requirement that a great miscarriage of justice
occurred during his sentencing. Because of his qualification as an armed career
criminal, Petitioner is serving a sentence of 190 months imprisonment. However,
after Mathis and Haney, it is clear that Petitioner’s general burglary conviction is not
a proper predicate offense under the ACCA. Without the armed career criminal
enhancement, Petitioner would have faced a maximum sentence of 120 months
imprisonment. Therefore, Petitioner is serving a sentence that exceeds the maximum
sentence he could have faced for violating 18 U.S.C. § 922(g). This satisfies the
requirement that a great miscarriage of justice occurred. Brown, 696 F.3d at 640-41;
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see also Narvaez v. United States, 674 F.3d 621, 629 (7th Cir. 2011) (explaining that
the incorrect imposition of a career offender status is a miscarriage of justice).
Because a violation of the Illinois general burglary statute no longer qualifies
as a predicate offense under the ACCA, Petitioner should not have been sentenced as
an armed career criminal. Therefore, the Court grants his Petition for Writ of Habeas
Corpus and vacates his sentence for resentencing without the career offender
enhancement.
CONCLUSION
IT IS THEREFORE ORDERED:
1) Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
is GRANTED;
2) Petitioner’s armed career criminal enhanced sentence imposed by the
Northern District of Illinois in No. 3:08-cr-50031-1 is VACATED;
3) Respondent SHALL deliver Petitioner to Northern District of Illinois for
resentencing;
4) Respondent SHALL release Petitioner from custody if he is not resentenced
within 90 days;
5) The Clerk is DIRECTED to enter Final Judgment hereon;
6) The Clerk is DIRECTED to send copies of this Order to Petitioner; Respondent;
United States District Court of the Northern District of Illinois; and the Clerk
of the United States District Court for the Northern District of Illinois for filing
in No. 3:08-cr-50031-1.
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Entered this _10th__ day of November, 2016.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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