El v. United States of America
Filing
9
ORDER & OPINION entered by Judge Joe Billy McDade on 9/7/2017. 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 this Court in Case No. 1:09cr10068-1 is VACATED; 3) Respondent SHALL deliver Petitioner to this Court for resentencing in accordance with a writ to be issued by the Clerk in Case No. 1:09cr10068-1;4) The Clerk is DIRECTED to enter Final Judgment hereon. CASE TERMINATED. SEE WRITTEN ORDER. (JS, ilcd)
E-FILED
Thursday, 07 September, 2017 02:40:39 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DANIEL O. EL,
Petitioner,
v.
ACTING WARDEN of FCI PEKIN,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 17-cv-1163
Honorable Joe B. McDade
ORDER & OPINION
This matter is before the Court on Daniel O. El’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1). The matter has been fully briefed and
is ready for disposition. For the reasons stated below, the Court grants the petition.
BACKGROUND
El is currently incarcerated at the Federal Correctional Institution in Pekin,
Illinois. On September 3, 2009, El pled guilty before this Court to being a prohibited
person in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 11, United
States v. El, No. 09-cr-10068). The Presentence Investigation Report (“PSR”)
identified three prior violent felonies that made El subject to an enhanced sentence
under the United States Sentencing Guidelines § 4B1.4: (i) two separate armed
robbery convictions and (ii) a conviction for Illinois residential burglary. (Doc. 13 at
6, United States v. El, No. 09-cr-10068). The United States Sentencing Guideline §
4B1.4 applies in the case of a defendant subject to an enhanced sentence under 18
U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”). This Court found that El
did indeed qualify as an armed career criminal based on those convictions and
sentenced him to the mandatory minimum sentence of 180 months. (Doc. 15 at 1,
United States v. El, No. 09-cr-10068).
El pled guilty by way of a written plea agreement in which he ostensibly (as
shall be seen) agreed to waive any right to collaterally attack his conviction and
sentence. (Doc. 11 at 4-5, United States v. El, No. 09-cr-10068). El also acknowledged
that he understood and agreed that although the statutory maximum for violating 18
U.S.C. § 922(g) was 120 months, if he was found to have three or more prior
convictions for a violent felony, the conviction would carry a mandatory minimum
sentence of fifteen years (180 months) and a maximum sentence of life in prison. (Doc.
11 at 3, United States v. El, No. 09-cr-10068).
El has not appealed his sentence. However, El did file a motion to request
counsel (Doc. 23, United States v. El, No. 09-cr-10068), which this Court granted,
treated as a motion under 28 U.S.C. § 2255, and then allowed to be withdrawn
without prejudice.
El now brings the instant petition for habeas corpus under 28 U.S.C. § 2241.
(Doc. 1). He contends the law has changed since he was sentenced and the law has
recognized that his Illinois conviction for residential burglary is not a generic
burglary under the Armed Career Criminal Act and therefore, his sentence as an
armed career criminal must be corrected.
LEGAL STANDARDS
Federal prisoners like El 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
2
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).
DISCUSSION
I.
Waiver of the Right to Collateral Attack
The Government contends El’s petition should be rejected because El agreed
to waive his right to collaterally attack his sentence and conviction. El’s plea
agreement contained the following waiver:
The defendant also understands that he has a right to attack the
conviction and/or sentence imposed collaterally on the grounds that it
was imposed in violation of the Constitution or laws of the United
States; that he received ineffective assistance from his attorney; that the
Court was without proper jurisdiction; or that the conviction and/or
sentence was otherwise subject to collateral attack. The defendant
understands such an attack is usually brought through a motion
pursuant to Title 28, United States Code, Section 2255. The defendant
and the defendant's attorney have reviewed Section 2255, and the
defendant understands his rights under the statute. Understanding
those rights, and having thoroughly discussed those rights with the
defendant's attorney, the defendant knowingly and voluntarily waives
his right to collaterally attack the conviction and/or sentence. The
defendant's attorney has fully discussed and explained the defendant's
right to attack the conviction and/or sentence collaterally with the
defendant. The defendant specifically acknowledges that the decision to
waive the right to challenge any later claim of the ineffectiveness of the
defendant's counsel was made by the defendant alone notwithstanding
any advice the defendant may or may not have received from the
defendant's attorney regarding this right. Regardless of any advice the
defendant's attorney may have given the defendant, in exchange for the
concessions made by the United States in this plea agreement, the
defendant hereby knowingly and voluntarily waives his right to
collaterally attack the conviction and/ or sentence. The rights waived by
the defendant include his right to challenge the amount of any fine or
3
restitution, in any collateral attack, including, but not limited to, a
motion brought under Title 28, United States Code, Section 2255.
(Doc. 11 at 4-5, United States v. El, No. 09-cr-10068) (emphasis added). Waivers of
collateral attacks are generally enforceable. Hurlow v. United States, 726 F.3d 958,
964 (7th Cir. 2013). The Seventh Circuit has recognized few exceptions to the general
enforceability, which include: involuntary plea agreements, the district court’s
reliance on an impermissible factor (like race), instances where the sentence exceeds
the statutory maximum, or the defendant claims ineffective assistance of counsel
during the negotiation of the plea agreement. Keller v. United States, 657 F.3d 675,
681 (7th Cir. 2011) (citations omitted).
El contends that waiver does not apply to him because this is a situation where
the sentence imposed exceeds the statutory maximum. He contends that an error in
determining that a defendant has three prior convictions for serious drug offenses or
violent felonies for purposes of the ACCA resulting in a sentence beyond the statutory
maximum sentence qualifies for an exception to the general rule of enforceable waiver
of collateral review rights. El acknowledges that the Seventh Circuit has rejected this
argument in United States v. Carson, 855 F.3d 828, 830-31 (7th Cir. 2017) under
similar circumstances present here. Carson explains that where the argument raised
in apparent violation of a waiver must be decided on the merits in order to determine
whether the sentence is unlawful, then the waiver would be eviscerated. Thus, such
exceptions to waiver clauses are generally disallowed. Again, El acknowledges Carson
and also acknowledges this Court is bound to follow Seventh Circuit precedent, so he
has brought this argument to preserve it. The Court notes that the argument has
been made and is part of the record, but it is rejected.
4
El also contends that he did not knowingly and intelligently waive his right to
collaterally attack his sentence on any other basis other than 28 U.S.C. § 2255
because the language of the waiver is ambiguous on this point. In United States v.
Chapa, 602 F.3d 865, 868 (7th Cir. 2010), the Seventh Circuit explained that plea
agreements are types of contracts subject to contract law principles and that “[t]o
determine if a defendant knew and understood the plea agreement, [the court] must
examine the language of the plea agreement itself and also look to the plea colloquy
between the defendant and the judge.” Id. (internal citations omitted). Ambiguities
in plea agreements are generally construed against the Government. See United
States v. Brown, 779 F.3d 486, 492 (7th Cir. 2015).
Here, the language of the waiver is ambiguous as to whether any other avenues
of collateral attack other than 28 U.S.C. § 2255 were contemplated by El and the
drafter of the plea agreement. The waiver provides in relevant part: “The defendant
understands such an attack is usually brought through a motion pursuant to Title
28, United States Code, Section 2255. The defendant and the defendant’s attorney
have reviewed Section 2255, and the defendant understands his rights under the
statute. Understanding those rights, and having thoroughly discussed those rights
with the defendant’s attorney, the defendant knowingly and voluntarily waives his
right to collaterally attack the conviction and/or sentence.”
Clearly the focus of the language is on 28 U.S.C. § 2255 and its purview should
accordingly be limited to § 2255. An example of a proper waiver that effectively
encompasses all avenues of collateral attack is found in Carson: “Defendant
knowingly and voluntarily waives the right to contest any aspect of the conviction
5
and sentence, including the manner in which the sentence was determined or
imposed, that could be contested under Title 18 or Title 28, or under any other
provision of federal law.” 855 F.3d. at 829.
El’s plea colloquy also supports his contention that the plea agreement was
limited to § 2255 attacks and that El believed that to be so. The transcript reveals
the Court asked El:
Q. In your plea agreement, paragraph eight and paragraph nine, you
are essentially waiving your right to appeal from your conviction and
sentence. And in paragraph nine you’re waiving your right to
collaterally attack your sentence under Section 2255 of Title 28
of the United States Code. So essentially in those two sections of your
plea agreement, you are waiving your rights to appeal from your
conviction and sentence. Do you understand that?
A. Yes, sir.
Q. And it's mentioned in paragraph nine, in particular, that your
attorney has discussed with you these appeal rights; you understand
them, and that you're voluntarily and knowingly waiving them; is that
right, sir?
A. Yes, sir.
(Doc. 27 at 16-17, United States v. El, No. 1:09-cr-10068) (emphasis added).
The Court agrees with El that the instant 2241 petition is not subject to the
waiver clause in his plea agreement because the plea agreement and the colloquy can
either be taken to mean that the waiver was limited to § 2255 relief or at best
ambiguous as to whether the waiver extends to avenues of collateral attack other
than § 2255. Either way, the Court does not believe the waiver can be construed to
foreclose the instant 2241 petition.
6
II.
Adequacy of 28 U.S.C. § 2255
The Government argues next that El cannot establish that § 2255 is
inadequate or ineffective to test the legality of his sentence, as required to proceed in
a § 2241 petition. 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). Both parties recognize
that § 2255 is “’inadequate or ineffective’ only when a structural problem in § 2255
forecloses even one round of effective collateral review.” Taylor v. Gilkey, 314 F.3d
832, 835 (7th Cir. 2002). The Government contends that the time constraints of §
2255 can never constitute a structural problem that legitimizes use of a § 2241
petition. The Court disagrees in El’s case.
This is precisely the type of situation in which a § 2241 petition is properly
used in lieu of a § 2255 motion. 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).
The cases El’s claim depends upon, Mathis v. United States, 136 S. Ct. 2243
(U.S. 2016) and United States v. Haney, 840 F.3d 472 (7th Cir. 2016), are cases of
7
statutory interpretation, the reliance upon which is cognizable in a § 2241 petition.
See Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016) (“An independent
claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. §
2241.”). The Government does not contest whether these cases apply retroactively on
collateral review.
Next, El could not have brought his argument in a timely § 2255 motion.
Putting aside the issue of his plea agreement waiver, El 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 2010 and therefore his ability
to file a timely § 2255 motion ended in 2011. The cases El’s instant petition hinge
upon, Mathis, 136 S. Ct. 2243 and Haney, 840 F.3d 472, were not decided until 2016.
Moreover, they are statutory interpretation cases that did not announce new rules of
law, and therefore did not start new one year statutes of limitations terms under 28
U.S.C. § 2255(f)(3).
Lastly, El’s statutory maximum penalty was 120 months of imprisonment. 18
U.S.C. § 924(a)(2). Based on the armed career criminal enhancement, the Court
imposed a sentence of 180 months of imprisonment. That means El was subjected to
a sentence five years too long. That is a grave enough error to be deemed a
miscarriage of justice corrigible upon collateral review. Brown v. Rios, 696 F.3d 638,
640–41 (7th Cir. 2012); 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).
8
For all these reasons, the Court finds that El is entitled to seek habeas relief
under § 2241 in lieu of filing a § 2255 motion.
III.
Matching up Petitioner’s Conviction under the then current Illinois
Residential Burglary Statute with the ACCA’s Generic Burglary
El was convicted of residential burglary in Illinois in 2004 and that conviction
was utilized by this Court to find him an armed career criminal and subject him to
an enhanced sentence of 180 months. The offense was defined as follows:
A person commits residential burglary who knowingly and without
authority enters or knowingly and without authority remains within
the dwelling place of another, or any part thereof, with the intent to
commit therein a felony or theft. This offense includes the offense of
burglary as defined in Section 19-1.
720 ll. Comp. Stat. Ann. 5/19-3(a) (West 2003). The section 19-1 offense was defined
as follows:
A person commits burglary when without authority he knowingly enters
or without authority remains within a building, housetrailer,
watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle
Code, railroad car, or any part thereof, with intent to commit therein a
felony or theft. This offense shall not include the offenses set out in
Section 4–102 of The Illinois Vehicle Code.
720 ll. Comp. Stat. Ann. 5/19-1 (West 2003). The general definition for the term
“dwelling” as it appears in the Chapter for Criminal Offenses in the Compiled Illinois
Statutes provides:
(b) For the purposes of Section 19-3 of this Code, “dwelling” means 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 reside.
720 Ill. Comp. Stat. Ann. 5/2-6 (West 1987).
9
In Haney, the Seventh Circuit held that under Mathis, the version of the
general Illinois burglary statute then in use, did not categorically match up with the
generic burglary offense utilized by the ACCA. 840 F.3d at 475. The Haney court
specifically held that several of the locational means listed by the statute—
housetrailer, watercraft, aircraft, motor vehicle… , railroad car—did not apply to
buildings and structures, and thus made the Illinois general burglary statute broader
than the generic burglary offense of the ACCA. See id. (“the ‘generic’ offense of
burglary listed in § 924(e)(2)(B)(ii)—generic burglary requires unlawful entry into a
building or other structure”).
So it seems clear to the Court that the Illinois offense of residential burglary
includes burglarizing mobile homes and trailers by way of 720 Ill. Comp. Stat. Ann.
5/2-6, as well as burglarizing housetrailers, watercrafts, aircrafts, motor vehicles and
railroad cars, to the extent someone resides in such locations, since 720 Ill. Comp.
Stat. Ann. 5/19-3(a) contains a sentence that specifically includes the offense of
burglary as defined in section 19-1 within the definition of residential burglary. The
Government does not contest this. Instead, 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 in Haney, 840 F.3d at 472.
10
In Mathis, the court found that the additional locational alternatives “land,
water, or air vehicles” made the Iowa statute at issue there broader than generic
burglary. Id. The Mathis court did not resort to trying to understand whether those
vehicles could suffice as “structures” as that term was understood by legal scholars of
the day. Nor did the Haney court resort to trying to figure out whether “housetrailers,
watercrafts, aircrafts, motor vehicles, and railroad cars” could fit within the meaning
of “structures” as that term is used in the generic burglary offense listed in the ACCA.
870 F.3d at 475-76. Therefore, this Court will not attempt to fit the locational
alternatives of the 2003 version of Illinois residential burglary into the term
“structures.” Instead it will straightforwardly compare the locational alternatives of
the 2003 version of Illinois residential burglary to the generic burglary offense listed
in the ACCA.
The 2003 version of the Illinois residential burglary statute contains reference
to several alternatively phrased locational means of commission that encompass
locations beyond buildings and structures, and instead extends to vehicles such as
mobile homes, trailers, housetrailers, watercrafts, aircrafts, motor vehicles and
railroad cars. Just because a vehicle can be used as a dwelling, that is, a place where
one resides, does not mean that vehicles are to be taken to be the equivalents of
buildings or structures. The Court finds that the residential burglary statute El 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 El’s sentence under the ACCA.
11
For these reasons, El should be resentenced to a maximum of 120 months for
violating 18 U.S.C. § 922(g).
CONCLUSION
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
is GRANTED;
2) Petitioner’s armed career criminal enhanced sentence imposed by this Court
in Case No. 1:09–cr–10068-1 is VACATED;
3) Respondent SHALL deliver Petitioner to this Court for resentencing in
accordance with a writ to be issued by the Clerk in Case No. 1:09–cr–10068-1;
4) The Clerk is DIRECTED to enter Final Judgment hereon.
CASE TERMINATED.
Entered this 7th day of September, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?