Burton v. Krueger
ORDER & OPINION entered by Judge Joe Billy McDade on 10/10/2017. For the reasons stated above, Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) is GRANTED. IT IS THEREFORE ORDERED: 1) Petitioner's P etition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241is GRANTED; 2) Petitioner's armed career criminal enhanced sentence imposed by the Northern District of Illinois in Case No. 1:08-cr-01055 is VACATED;3) Respondent SHALL deliver Petitioner to the Northern District of Illinois for resentencing; 4) The Clerk is DIRECTED to enter Final Judgment hereon. CASE TERMINATED. See full written Order & Opinion.(VH, ilcd)
Tuesday, 10 October, 2017 04:46:13 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JEFFERY E. KRUEGER,
Case No. 16-cv-1341
ORDER & OPINION
This matter is before the Court on a Petition for Writ of Habeas Corpus Under
28 U.S.C. § 2241 filed by Joseph Burton. The motion has been fully briefed. For the
reasons stated below, the motion is GRANTED.
On December 17, 2008, Joseph Burton was indicted with possession of a
firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). United States
v. Burton, No. 08-cr-1055 (N.D. Ill. 2009) (Doc. 1). On June 24, 2009, a jury found
Burton guilty, and he was sentenced to 235 months in prison. Burton’s sentence was
enhanced because the sentencing court determined that Burton was an armed career
criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based
on Burton’s 2005 drug offense and three Illinois residential burglaries, one from 1993
and two from 1997. (Doc. #7-1, App. 14-17). Had Burton not qualified as an armed
career criminal, he would have faced a maximum term of imprisonment of ten years
on the § 922(g) count. See 18 U.S.C. § 924(a)(2).
On July 23, 2010, the Seventh Circuit affirmed Burton’s conviction and
sentence. United States v. Burton, 387 F.App’x 635 (7th Cir. 2010). The Circuit Court
held that any argument about applying the enhancement to Burton’s sentence would
be frivolous because Burton had more than three felonies for residential burglary, a
violent felony under § 924(e)(2)(B)(ii). Id. at 639.
On January 24, 2011, Burton filed his first motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255, raising various ineffective assistance
of counsel claims. The District Court denied his claims, United States v. Burton, No.
11-522, 2011 WL 5881804 (N.D. Ill. Nov. 22, 2011), and Burton did not appeal the
In Samuel Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court
held that the ACCA’s residual clause, § 924(e)(2)(B), was unconstitutionally vague.
Following that decision, Burton petitioned the Seventh Circuit for authorization to
file a second or successive motion under § 2255 arguing that Illinois’ residential
burglary statute is broader than generic burglary. On May 25, 2016, the Seventh
Circuit denied Burton’s request, noting that Dawkins v. United States, 809 F.3d 953,
954 (7th Cir. 2016), already held that residential burglary satisfies the definition of
generic burglary outlined in Taylor v. United States, 495 U.S. 575, 599 (1990). (Doc.
#7-2, App. 76-77).
Following the Supreme Court’s June 23, 2016, decision in Mathis v. United
States, 136 S.Ct. 2243 (2016), Burton again sought permission to file a second or
successive § 2255 motion. The Seventh Circuit denied Burton’s request because
Mathis did not announce of new rule of constitutional law. Id. at App. 78-79. The
Court noted that “[a]n independent claim based on Mathis must be brought, if at all,
in a petition under 28 U.S.C. § 2241.” Id.
Thus, on September 12, 2016, Burton filed the instant § 2241 petition arguing
that his Illinois residential burglary convictions are no longer appropriate predicates
for ACCA enhancement under Mathis. The Government has filed its response and
Petitioner filed a reply. Thus, this matter is ripe for decision.
Federal prisoners like Burton who wish to collaterally attack their convictions
or sentences ordinarily must generally do so under 28 U.S.C. § 2255. Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012). They may petition under 28 U.S.C. § 2241 only in
the rare circumstance in which 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”). The mere fact that a petitioner’s claim would be
a second or successive § 2255 motion does not render § 2255 inadequate or ineffective.
See In re Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998).
Adequacy of 28 U.S.C. § 2255
A federal prisoner may utilize 28 U.S.C. § 2241 only in the rare circumstance
in which the remedy provided under § 2255 “is inadequate or ineffective to test the
legality of his detention.” See 28 U.S.C. § 2255(e). The Seventh Circuit has explained
that § 2255 is “inadequate” when its provisions limiting multiple § 2255 motions
prevent a prisoner from obtaining review of a legal theory that “establishes the
petitioner’s actual innocence.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003)
(quoting Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002)). Thus, a petitioner “must
first show that the legal theory he advances relies on a change in law that both
postdates his first § 2255 motion (for failure to raise a claim the first time around
does not render § 2255 ‘inadequate’) and ‘eludes the permission in section 2255 for
successive motions.’” Id. (quoting In re Davenport, 147 F.3d at 611).
A federal prisoner must meet three criteria in order to invoke the Savings
Clause of 28 U.S.C. § 2255(e) and obtain collateral relief pursuant to 28 U.S.C. § 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 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).
In support of his petition, Burton relies on Mathis v. United States, 136 S. Ct.
2243 (2016). Burton could not have brought this argument in a timely § 2255 motion.
Burton had one year from the date his sentence became final to file a motion to vacate
or modify his sentence pursuant to 28 U.S.C. § 2255(f)(1). His sentence became final
in 2009 and therefore his ability to file a timely § 2255 motion ended in 2010. Mathis
was not decided until 2016 and is a statutory interpretation case that did not
announce a new rule of constitutional law. Thus, Mathis did not start a fresh year
under 28 U.S.C. § 2255(f)(3) and eludes the permission in section 2255 for successive
motions. The Government has explicitly waived any argument regarding whether
Mathis applies retroactively on collateral review. (Doc. 7 at 16).
Furthermore, Burton’s statutory maximum penalty was 120 months of
imprisonment. See 18 U.S.C. § 924(a)(2). Burton’s sentence was enhanced to 235
months of imprisonment because the sentencing court determined that Burton was
an armed career criminal under the ACCA based on Burton’s prior drug offense and
three Illinois residential burglary convictions. That means Burton was subjected to a
sentence about nine and a half years too long. That is a grave enough error to be
deemed a miscarriage of justice corrigible upon collateral review. Rios, 696 F.3d at
640–41; 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
Accordingly, the Court finds that Burton is entitled to seek habeas relief under
§ 2241 in lieu of filing a § 2255 motion.
Illinois’ Then-current Residential Burglary Statute was Broader Than
Generic Burglary Under the ACCA
Burton was convicted of residential burglary in Illinois, once in 1993 and twice
in 1997. Those convictions were utilized by the district court to find him an armed
career criminal and subject him to an enhanced sentence of 235 months. The offense
was defined as follows: “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.” 720 ILL. COMP. STAT. 5/19-3 (1985). For purposes of the
residential burglary statute, “dwelling” was defined as:
A house, apartment, mobile home, trailer, or other living quarters in
which at the time of the alleged offense the owners or occupants actually
reside or in their absence intend within a reasonable period of time to
720 ILL. COMP. STAT. 5/2-6(b) (1991).
A defendant will qualify as an armed career criminal under the ACCA if he has
prior convictions for violent felonies committed on three different occasions. See 18
U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” to include any felony,
whether state or federal, that “is burglary, arson, or extortion.” Id. § 924(e)(2)(B)(ii).
Burglary under the ACCA is “an unlawful or unprivileged entry into . . . a building
or other structure, with intent to commit a crime.” Mathis, 136 S.Ct. at 2248. A crime
counts as “burglary” under the ACCA if its elements are the same as, or narrower
than, those of the generic offense. Id. “But if the crime of conviction covers any more
conduct than the generic offense, then it is not an ACCA ‘burglary’—even if the
defendant’s actual conduct . . . fits within the generic offense’s boundaries.” Id. Citing
Mathis, Burton argues that his residential burglary convictions no longer count as
Mathis dealt with circumstances similar to this case. At issue was Iowa’s
burglary statute which reached a broader range of places (“any building, structure,
or land, water, or air vehicle”) than generic burglary under the ACCA. See IOWA CODE
§ 702.12 (2013). Mathis held that “those listed locations [in Iowa’s burglary statute]
are not alternative elements, going toward the creation of separate crimes. To the
contrary, they lay out alternative ways of satisfying a single locational element . . . .”
136 S.Ct. at 2250. Because Iowa’s locational element was broader than generic
burglary’s locational element, it did not count as a violent felony under the ACCA. Id.
In United States v. Haney, the Seventh Circuit held that under Mathis, a
conviction under Illinois’ early-1970s burglary statute was not a violent felony under
the ACCA because the statute applied not only to buildings but also to vehicles, such
as housetrailers and motor vehicles. United States v. Haney, 840 F.3d 472, 475 (7th
Cir. 2016). Haney and other cases dictate that state burglary statutes which include
movable or mobile conveyances are outside the bounds of the ACCA’s generic burglary
offense. See United States v. Perry, 862 F.3d 620, 623-34 (7th Cir. 2017)
(distinguishing non-generic statutes that encompass defendants who enter movable
conveyances); Robertson v. United States, No. 16-2059, 2017 WL 3795756, *4 (C.D.
Ill. Aug. 31, 2017) (Illinois burglary statute included entry into vehicles and therefore
was not generic burglary under ACCA); Green v. United States, No. 16-502, 2017 WL
568315, *3 (E.D. Wisc. Feb. 13, 2017) (Wisconsin burglary statute included entry into
housetrailers, watercraft, aircraft, cars and railroad cars and therefore was not
generic burglary under ACCA); El v. Acting Warden of FCI Pekin, No. 17-1163, 2017
WL 3929309, *6 (C.D. Ill. Sept. 7, 2017) (2003 version of Illinois residential burglary
statute extended to mobile homes, trailers, aircrafts, housetrailers, motor vehicles,
and railroad cars and therefore was non-generic).
Here, the 1990s-version of Illinois residential burglary encompassed mobile
homes and trailers. Thus, the statute included locations other than a “building or
other structure,” and falls outside the confines of generic burglary. The Government
counsels the Court to look to the treatise “Substantive Criminal Law” by Wayne
LaFave and Austin Scott to understand whether mobile homes and trailers are
“structures” within the meaning of the generic burglary definition utilized by the
ACCA, as the Government contends the Supreme Court did in Taylor v. United
States, 495 U.S. 575, 598 (1990). The Court declines to do so because that was not the
approach utilized in Mathis, 136 S. Ct. at 2250 or Haney, 840 F.3d at 472. Mathis
instructs this Court to simply compare the elements of Illinois residential burglary to
generic burglary and see if Illinois’ statute swept more broadly. See Mathis, 136 S.Ct.
at 2248. The Court finds that the residential burglary statute Burton was convicted
of has locational alternatives broader than generic burglary and therefore does not
match up under the categorical approach and, in turn, could not be used to enhance
Burton’s sentence under the ACCA.
For these reasons, Burton should be resentenced to a maximum of 120 months
for violating 18 U.S.C. § 922(g).
For the reasons stated above, Petitioner’s Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (Doc. 1) is GRANTED.
IT IS THEREFORE ORDERED:
1) Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
2) Petitioner’s armed career criminal enhanced sentence imposed by the
Northern District of Illinois in Case No. 1:08-cr-01055 is VACATED;
3) Respondent SHALL deliver Petitioner to the Northern District of Illinois for
4) The Clerk is DIRECTED to enter Final Judgment hereon.
Entered this 10th day of October, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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