Parker v. Baird
ORDER DISMISSING CASE with prejudice and denying Parker's 28 U.S.C. Section 2241 petition. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 2/13/2018. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TRACY L. PARKER,
Civil No. 16-cv-1012-DRH-CJP
MEMORANDUM and ORDER
Tracy L. Parker, an inmate in the custody of the BOP, filed a petition for
writ of habeas corpus under 28 U.S.C. §2241. (Doc. 1).
Petitioner was sentenced as an armed career criminal under 18 U.S.C. §
924(e). Relying on Mathis v. United States, 136 S. Ct. 2243 (2016), he argues that
he is entitled to habeas relief because he does not have three prior convictions for
Relevant Facts and Procedural History
On September 28, 2000, Parker pleaded guilty to one count of possession
of a firearm by a convicted felon in the Central District of Illinois. United States v.
Parker, Case No. 00-CR-20028-MPM (C. D. Ill.). Because he had at least three
prior convictions for violent felonies, he was sentenced as an armed career
criminal under 18 U.S.C. § 924(e).
The government moved for a downward
departure, and Parker was sentenced to 150 months imprisonment.
B. True is the now the warden of USP-Marion. Pursuant to Rule 2(a) of the Rules Governing §
2254 Cases in the United States District Courts and to Fed. R. Civ. P. 25(d), B. TRUE is ordered
substituted as respondent herein.
Ex. 1, Docket Sheet from Case No. 00-CR-20028-MPM. 2
The presentence investigation report stated that Parker qualified as an
Armed Career Criminal because he had eight prior convictions for violent
offenses. The report lists convictions under Illinois law for four burglaries, two
counts of residential burglary, one aggravated battery, and one arson. The report
does not specify which of the eight prior convictions the court should rely on in
finding that Parker was an Armed Career Criminal. Doc. 18, p. 8.
Parker did not file a direct appeal. He file a motion under 28 U.S.C. § 2255
which was denied in February 2015. Parker v. United States, Case No. 14-cv2131-DGB (C. D. Ill).
Present Custody Status
Petitioner’s 150 month sentence has expired.
See, Doc. 18, p. 2, n. 1.
However, he also pleaded guilty in September, 2002, to charges of conspiracy to
escape and attempted escape. Those charges arose out of a scheme to escape
from custody while he was awaiting sentencing on the felon in possession charge.
He was sentenced to 48 months imprisonment on each charge, to run
consecutively to each other and to the 150 month sentence on the felon in
possession conviction. See, U.S. v. Parker, 368 F.3d 963 (7th Cir. 2004).
For habeas purposes, consecutive sentences are viewed in the aggregate.
Parker is still “in custody” and can challenge the expired 150 month sentence
because a successful challenge “would advance the date of his eligibility for release
from present incarceration.” Garlotte v. Fordice, 115 S.Ct. 1948, 1952 (1995).
The Court uses the document, exhibit and page numbers assigned by the CM/ECF system.
Applicable Legal Standards
Respondent concedes that Mathis is a case of statutory construction which
applies retroactively to cases on collateral review. Doc. 18, p. 6. Accordingly,
petitioner’s argument fits within the savings clause of 28 U.S.C. § 2255(h). See,
In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).
The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), imposes a
mandatory minimum sentence of 15 years on a person who violates 18 U.S.C. §
922(g) and who has three prior convictions for a violent felony or a serious drug
A violent felony is a crime punishable by more than one year of
imprisonment that “has as an element the use, attempted use, or threatened use
of physical force against the person of another” or “is burglary, arson, or
extortion, [or] involves use of explosives.” § 924(e)(2)(B).3
In determining whether a prior crime counts as a predicate for purposes of
the ACCA, a court uses a “categorical approach,” looking not to the facts of the
prior crime but to the statutory elements of the prior conviction. Mathis, 136
S.Ct. at 2248. A prior crime qualifies as an ACCA predicate “if its elements are
the same as, or narrower than, those of the generic offense.” Mathis, 136 S. Ct. at
The Seventh Circuit has explained how to apply Mathis:
When the predicate statute “sets out a single (or “indivisible”) set of
elements to define a single crime,” the categorical approach is straight
forward. Mathis, 136 S.Ct. at 2248. In some statutes however. . . the statute
The “residual clause” of the ACCA was declared unconstitutional in Johnson v. US, 135 S.Ct.
2551 (2015). Therefore, petitioner’s prior convictions must qualify as violent felonies under one
of the two clauses quoted above.
is divisible, that is, it contains within it crimes with different elements. . . . .
If statutory alternatives in a criminal statute carry different punishments,
then they must be elements of different crimes. Mathis, 136 S.Ct. at 2256
(citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000)). And so, “[t]he first task for a sentencing court faced with an
alternatively phrased statute is thus to determine whether its listed items
are elements or means.” Id. And if the statute with alternatively phrased
options contains elements of different crimes, then the court may and
should “review the record materials to discover which of the enumerated
alternatives played a part in the defendant's prior conviction.” Id.
United States v. Enoch, 865 F.3d 575, 579–80 (7th Cir. 2017).
Petitioner argues that his four prior convictions for burglary are no longer
predicate crimes because the Illinois burglary statute under which he was
convicted is broader than generic burglary. Respondent concedes that point, but
argues that petitioner still has at least three qualifying convictions for violent
felonies not counting the four burglaries. Doc. 18, p. 8. Respondent is correct.
The Seventh Circuit has held that Illinois residential burglary corresponds
to generic burglary for purposes of the ACCA. Smith v. United States, 877 F.3d
720 (7th Cir. 2017). Parker was convicted under the same statute that was at
issue in Smith. Therefore, his argument that Illinois residential burglary is not a
violent felony must be rejected.
Parker pleaded guilty to two counts of residential burglary, charged in the
He argues that the two counts should count for only one prior
The Information charged him with residential burglary of two separate
“dwelling places” on the same date. Doc. 18, Ex. 4.
The addresses are redacted
in the Information, but Parker admits that he burgled two different homes. Doc.
21, p. 13. He argues that, because the burglaries took place on the same date
with little time in between them, the two burglaries constitute only one predicate
The ACCA requires that predicate offenses be “committed on occasions
different from one another.” § 924(e)(1). The fact that the state chose to charge
the two residential burglaries in the same Information is not dispositive. Where
the crimes took place sequentially, not simultaneously, and were separated by
enough time that the perpetrator could have changed his mind before committing
the second crime, the crimes count separately. United States v. Elliott, 703 F.3d
378, 384 (7th Cir. 2012). Parker’s crimes involved burglaries of two different
residences. The two burglaries were committed sequentially and logic dictates
that there must have been enough time for Parker to have changed his mind
before burglarizing the second residence. Therefore, his two residential burglary
convictions count for two prior violent felonies.
Parker points out in his reply that his two residential burglary convictions
were treated as a single conviction for purposes of assessing criminal history
points in the presentence investigation report.
However, the standard for
assessing criminal history points under U.S.S.G. § 4A1.2 is not the same as the
standard for determining whether offenses were committed on occasions different
from one another for purposes of § 924(e)(1).
Parker pleaded guilty to one count of aggravated battery. He was charged
with “while committing a battery in violation of Illinois Revised Statues, Chapter
38, Section 12-3, knowingly and without legal justification caused bodily harm to
____ in that he struck ____ in the face with his hands, knowing ____ to be
pregnant. In violation of Chapter 38, Section 12-4(b)(11).” Doc. 18, Ex. 6, p. 4.
In order to be convicted of aggravated battery under Illinois law, the
defendant first has to be committing a simple battery.
Illinois defines simple
battery as: “A person commits battery if he intentionally or knowingly without
legal justification and by any means, (1) causes bodily harm to an individual or (2)
makes physical contact of an insulting or provoking nature with an individual.”
Doc. 18, Ex. 8, p.1. In United States v. Lynn, 851 F.3d 786, 797 (7th Cir. 2017),
decided after Mathis, the Seventh Circuit held that the simple battery statue is
divisible and that Illinois aggravated battery is a violent felony for purposes of the
ACCA where the defendant was charged under the “bodily harm” prong of the
simple battery statue. Here, it is clear that Parker was charged under the “bodily
All of petitioner’s arguments as to aggravated battery must be
rejected under Lynn.
The version of the Illinois arson statute in effect at the time of Parker’s
conviction defined arson as:
A person commits arson when, by means of fire or explosive, he knowingly:
(a) Damages any real property, or any personal property having a value of
$150 or more, of another without his consent; or
(b) With intent to defraud an insurer, damages any property or any
personal property having a value of $150 or more.
Doc. 18, Ex. 10.
Petitioner was charged under clause (a) of the statute. Doc. 18, Ex. 9. He
argues that Illinois arson is broader than generic arson because generic arson
requires “intentional or malicious” conduct, but the Illinois statute requires only
that the defendant act “knowingly.”
Generic arson is “the intentional or malicious burning of any property.”
United States v. Misleveck, 735 F.3d 983, 988 (7th Cir. 2013). The Illinois statue
uses the term “knowingly,” but knowingly damaging a building by fire is not
different in any relevant way from intentionally damaging a building by fire.
Illinois law recognizes that the Illinois arson statute requires intentionally
damaging a building by fire; merely reckless or careless conduct is not enough.
People v. Russ, 334 N.E.2d 108, 115 (1975), citing People v. Shelton, 248 N.E.2d
65, 67 (Ill. 1969). Thus, this Court concludes that Illinois arson is no broader
than generic arson and is therefore a violent felony for purposes of the ACCA.
Because Parker had at least three prior convictions for violent felonies, he
was properly sentenced as an Armed Career Criminal.
Accordingly, Tracy L. Parker’s Petition for a Writ of Habeas Corpus Under
28 U.S.C. § 2241 (Doc. 1) is DENIED.
The Court dismisses with prejudice
Parker’s 28 U.S.C. § 2241 petition. The Clerk of Court shall enter judgment in
favor of respondent.
IT IS SO ORDERED.
United States District Judge
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within sixty days of the entry of judgment. Fed. R. App.
P. 4(a)(1)(B). A motion for leave to appeal in forma pauperis should set forth the
issues petitioner plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the 60-day appeal deadline. Other
motions, including a Rule 60 motion for relief from a final judgment, order, or
proceeding, do not toll the deadline for an appeal.
It is not necessary for petitioner to obtain a certificate of appealability from
this disposition of his §2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
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