Wilson v. Werlich

Filing 9

ORDER to SHOW CAUSE: Petitioner shall SHOW CAUSE no later than October 12, 2017 (21 days from the date of this Order) why this case should not be dismissed without prejudice as duplicative of 15- 2266. (Action due by 10/12/2017). Signed by Judge David R. Herndon on 9/21/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY D. WILSON,
Petitioner,
vs.

Case No. 17-cv-0778-DRH

T.G. WERLICH,
Respondent.

ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in Greenville Federal Correctional
Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge his enhanced sentence as a career offender pursuant to the Armed
Career Criminal Act (“ACCA”). United States v. Wilson, No. 07-cr-20090-MPM
(C.D. Ill.) (“criminal case”).

The Petition was filed on July 25, 2017.

Petitioner requests resentencing without the ACCA enhancement.
Normally the Court would conduct a brief review of the Petition pursuant
to Rule 4 of the Rules Governing § 2254 Cases. However, it has come to the
Court’s attention that this action may be duplicative of another currently
pending action in the Central District. For reasons explained below, Petitioner
is DIRECTED to SHOW CAUSE why this case should not be dismissed without
prejudice as duplicative of Case No. 2:15-cv-2266-SLD (C.D. Ill.) (“15-2266”).

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The Petition
Petitioner argues that the Supreme Court’s recent decision in Mathis v.

United States, 136 S.Ct. 2243 (U.S. 2016) suggests that his enhanced sentence
under the ACCA is unconstitutional. (Doc. 1, p. 6). Specifically, he argues that
his underlying conviction for Illinois Residential Burglary should not have been
considered under the ACCA. Id. Petitioner requests that the Court vacate his
sentence and resentence him without the ACCA. (Doc. 1, p. 8).
Petitioner has informed the Court that he has another habeas case
pending in the Central District.

A review of that case’s docket1 shows that

Petitioner has been appointed an attorney, and that the attorney filed an
amended petition on June 21, 2016. (15-2266, Doc. 9). The Amended Petition
filed by the attorney specifically argues that “Mr. Wilson’s residential burglary
conviction no longer qualifies as a violent felony and he is not an armed career
criminal. Furthermore the armed bank robbery offense underlying the § 924(c)
conviction categorically fails to qualify as a crime of violence within the meaning
of [the ACCA,] 18 U.S.C. § 924(c)(3)(A).” (15-2266, Doc. 9, pp. 1-2).

The

Mathis decision came out a mere 2 days after the Amended Petition was filed.
136 S.Ct. 2243. The government filed a Response to the Amended Petition on
September 2, 2016, and Petitioner’s counsel filed a reply on September 20,
2016. (15-2266, Doc. 12, Doc. 13). The Reply specifically argues that Mathis
is relevant to determining whether Petitioner’s residential burglary conviction is

Judicial notice may be taken of matters of public record. Henson v. CSC Credit Services, 29
F.3d 280 (7th Cir. 1994).
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an enumerated burglary.

(15-2266, Doc. 13, p. 2).

It also argues that the

substantive rule announced in Mathis would apply when ruling on a timely
issue based on Johnson v. United States, 135 S.Ct. 2551 (U.S. 2015). (152266, Doc. 13, p. 9). To date, no decision has been entered by the Central
District on Petitioner’s § 2255 Petition.
On October 13, 2016, despite being represented by counsel, Petitioner
began filing pro-se motions with the Central District. (15-2266, Doc. 14). On
February 13, 2017, Petitioner filed a “Notice of Favorable Recent Changes in
the Law.”

(15-2266, Doc. 16).

Among other issues, the “Notice” points to

Mathis, and argues that it is permissible to consider Mathis in a first-time §
2255 Petition. (15-2266, Doc. 16, pp. 6-7). Since filing that Motion, Petitioner
has brought 2 motions to voluntarily dismiss his Central District case. (152266, Doc. 18, 19).

To date, the Central District has not ruled on any of

Petitioner’s pro-se motions or otherwise addressed them.

Discussion
Ordinarily, a prisoner may challenge his federal conviction or sentence
only by means of a § 2255 motion brought before the sentencing court, and this
remedy typically supersedes the writ of habeas corpus. Brown v. Caraway, 719
F.3d 583, 586 (7th Cir. 2013) (citing Brown v. Rios, 696 F.3d 638, 640 (7th
Cir. 2012)). In this case, Petitioner is clearly attacking his sentence. In under
to proceed under § 2241, he is required to show that § 2255 is not available to

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him. But unlike the typical § 2241 litigant, Petitioner’s § 2255 proceeding has
not concluded.

No ruling has been issued on his § 2255 Motion, or the

motions he has filed since October 2016.
The “savings clause” under § 2255(e) allows a federal prisoner to file a
petition under § 2241, if the remedy provided by § 2255 is “inadequate or
ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e). In
considering what it means to be “inadequate or ineffective,” the Seventh Circuit
has held that a federal prisoner should be permitted to seek relief 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.” In re Davenport, 147 F.3d 605, 611
(7th Cir. 1998). A federal prisoner must meet 3 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 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).
It is questionable whether Petitioner has actually triggered the savings
clause because he appears incapable of meeting the second element. He cannot

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show that § 2255 is ineffective to raise this issue because his § 2255 case is still
on-going and, more importantly, Petitioner has actually raised the issue that he
seeks to raise in this case in his § 2255 proceeding.

Both Petitioner’s

appointed counsel and Petitioner himself have attempted to draw the Central
District’s attention to Mathis and its potential implications on Petitioner’s
sentence.

They both have also argued that Petitioner’s Illinois burglary

conviction should not have been counted for purposes of applying the ACCA. It
would be inconsistent for Petitioner to argue that he could not invoke Mathis on
§ 2255 when a review of the docket shows that he did invoke Mathis,
repeatedly. 2
Additionally, the Court may dismiss litigation “for reasons of wise
judicial administration whenever it is duplicative of a parallel action already
pending in . . . federal court.” Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223
(7th Cir. 1993) (quoting Colorado River Water Conservation District v. United

States, 424 U.S. 800, 817 (1976)). The determination is discretionary, and
district courts are given latitude to exercise that discretion, but generally, a suit
will be considered duplicative if the claims, parties, and relief requested do not
significantly vary between the actions. McReynolds v. Merrill Lynch Co. Inc.,
694 F.3d 873, 888-89 (7th Cir. 2012); Lancaster v. Fairman, No. 83 C. 8895,
1985 WL 990 at *1 (N.D. Ill. April 25, 1985) (dismissing habeas petition as
duplicative). Here the claim is clearly duplicative, as Petitioner is behind both

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Depending on how the Central District rules, it may be possible to argue that § 2255 was
unavailable, but such determination can only be made after there is a ruling to consider.

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suits, has raised the same arguments in both suits, and requests vacation of his
original sentence and resentencing in both suits.

Judicial economy

considerations therefore appear to justify dismissal.
In the alternative, the Court may also stay cases deemed duplicative.

Central States, Southeast and Southwest Areas Pension Fund v. Paramount
Liquor Co., 203 F.3d 442, 444 (7th Cir. 2000).

Outright dismissal is

appropriate when it is clear that the same party filed all of the suits, provided
that it is apparent that dismissal will not adversely affect any litigant’s interests.

Id. at 444-45. As Petitioner has brought both actions under discussion here
and the actions raise identical issues, dismissal appears most appropriate.
Of course, Petitioner has notified this Court of his intention to dismiss
the Central District case. However, Petitioner is beyond the time where he will
be permitted to dismiss his suit without leave of court; his § 2255 is fully
briefed and ready for disposition. He cannot dismiss the action without leave
of the court, which it has not yet granted. Courts will also frequently limit the
ability of litigants to go around their recruited counsel by striking any motions
filed pro-se while a litigant is represented. As the Central District has not acted
on Petitioner’s Motions at this time, it is of little use to speculate how it will
rule, but the uncertainty counsels caution at this stage.
Petitioner shall be permitted to SHOW CAUSE (give this Court a reason)
why this case should not be dismissed at this time as duplicative, taking into
consideration the points raised above. Any such dismissal would be without

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prejudice to any valid subsequent § 2241 petition.

Petitioner shall SHOW

CAUSE no later than October 12, 2017 (21 days from the date of this Order)
why this case should not be dismissed without prejudice as duplicative of 152266.
IT IS SO ORDERED.

Digitally signed by
Judge David R.
Herndon
Date: 2017.09.21
11:11:29 -05'00'
United States District Judge

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