United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
petitioner John Turnage is a prisoner in the custody of the
Federal Bureau of Prisons (BOP) currently housed at the
Federal Correctional Institution in Oxford, Wisconsin
(FCI-Oxford). He is serving a sentence for a 2004 conviction
for drug possession with a career offender enhancement.
Turnage has filed a petition for writ of habeas corpus under
28 U.S.C. § 2241 challenging his sentence under
Mathis v. United States, 136 S.Ct. 2243 (2016).
petition is before the court for preliminary review, pursuant
to Rule 4 of the Rules Governing Section 2254
Cases. Under Rule 4, I will dismiss the petition
only if it plainly appears that Turnage is not entitled to
relief. As discussed below, Turnage is not entitled to the
relief he seeks, so I will dismiss the petition.
the following facts from Turnage's petition, Dkt. 3, and
from judicial opinions issued during Turnage's appeals
and postconviction proceedings.
a 2004 jury trial, Turnage was found guilty of one count of
possession with intent to distribute five or more grams of
cocaine base in the United States District Court for the
District of North Dakota. Based on Turnage's offense
level (26) and criminal history points (16), the United
States Sentencing Guidelines specified an imprisonment range
of 120-150 months. But the court found that Turnage qualified
as a career offender under § 4B1.1 of the Guidelines,
because of his prior Minnesota convictions for first-degree
aggravated robbery and second-degree attempted assault.
Turnage's status as a career offender gave him an offense
level of 37 and a Guidelines imprisonment range of 360 months
to life. In 2005, the court sentenced him to 360 months'
imprisonment. His conviction and sentence were affirmed by
the Eighth Circuit Court of Appeals.
2006, Turnage moved to vacate or set aside his conviction
under 28 U.S.C. § 2255 in the District of North Dakota.
The motion was denied. Turnage then filed a series of
petitions under § 2241 challenging the validity of his
federal conviction and sentencing and his Minnesota
second-degree assault conviction. These petitions were all
denied. Turnage then filed a petition for writ of habeas
corpus under § 2241 in this court.
postconviction relief to federal prisoners generally must
proceed under § 2255, Turnage brings this challenge
under § 2241. To obtain relief under § 2241, a
habeas petitioner must satisfy three conditions. First, the
prisoner must show that he relies on a judicial decision in
“a ‘statutory-interpretation case, ' rather
than a ‘constitutional case.'” Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (quoting
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)).
Second, the prisoner must show that he relies on a
retroactive decision that he could not have invoked in his
first § 2255 motion. Id. Third, the prisoner
must demonstrate that there was “a grave enough error
to be deemed a miscarriage of justice corrigible therefore in
a habeas corpus proceeding.” Id. (quoting
Rios, 696 F.3d at 640). Turnage plainly cannot
satisfy the third condition, so I must dismiss his petition.
who was sentenced as a career offender, challenges his
sentence under Mathis, a recent U.S. Supreme Court
decision. Mathis interpreted the enumerated offense
clause within the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B)(ii). The enumerated offense clause
defines “violent felony” as including
“burglary, arson, or extortion.” The Guidelines
contain a similar clause defining “crime of
violence” as “murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex offense,
robbery, arson, extortion, or the use of unlawful possession
of a firearm . . . or explosive material.” U.S.
Sentencing Guidelines Manual § 4B1.2(a)(2) (U.S.
Sentencing Comm'n 2016). Two prior convictions for a
violent felony allow for a career-offender sentencing
enhancement under the Guidelines. See §§
4B1.1; 4B1.2. In Mathis, the Court reaffirmed the
proper process for determining whether a defendant's
prior state-law conviction is one of the enumerated violent
felonies under § 924(e)(2)(B)(ii) of the ACCA: the
“categorical approach.” 136 S.Ct. at 2248. Under
the categorical approach, the sentencing court should compare
the elements of the state law under which the defendant was
convicted to the elements of the generic version of the
enumerated violent felony. If the state law “defines
multiple crimes by listing multiple, alternative elements,
” the sentencing court should use the
“‘modified categorical approach, ' which
permits a court to look at a limited class of documents from
the record of a prior conviction to determine what crime,
with what elements, a defendant was convicted of before
comparing that crime's elements to those of the generic
offense.” Id. at 2245-46. Upon comparison, if
the state law is “the same as, or narrower than, the
relevant generic offense, ” it qualifies as an
enumerated violent felony. Id. at 2257.
Turnage satisfies the first condition, because
Mathis is a statutory-interpretation case.
Dawkins v. United States, 829 F.3d 549, 551 (7th
Cir. 2016). Mathis “appears to be a
substantive decision that applies retroactively.”
Pulliam v. Krueger, No. 16-cv-1379, 2017 WL 104184,
at *2 (C.D. Ill. Jan. 10, 2017); see Holt v. United
States, 843 F.3d 720, 722 (7th Cir. 2016). But see
McGee v. Kreuger, No. 17-cv-1086, 2017 WL 1424990, at *2
(C.D. Ill. Mar. 21, 2017) (“This Court does not believe
Mathis is retroactive.”). But Turnage can not
obtain relief under § 2241 because he cannot satisfy the
third condition. That is, he cannot demonstrate that there
was any error in his sentencing, let alone an error
grave enough to be a miscarriage of justice.
contends that under Mathis, the sentencing court
erroneously found that his prior Minnesota conviction for
second-degree assault was a violent felony. Under Minn. Stat.
§ 609.222(1), second-degree assault is defined as
“assault[ing] another with a dangerous weapon.”
Assault is defined under Minnesota law as “(1) an act
done with intent to cause fear in another of immediate bodily
harm or death; or (2) the intentional infliction of or
attempt to inflict bodily harm upon another.” §
609.02(10). Turnage contends that Minnesota second-degree
assault is broader than generic aggravated assault, and so
under Mathis, it is not an enumerated violent crime.
But even if this is true, it does not mean that the trial
court erred in categorizing this conviction as a violent
crime, because there is more than one way for a conviction to
qualify as a violent crime under § 4B1.2. The force
clause, § 4B1.2(a)(1), defines a crime of violence as
any crime that “has as an element the use, attempted
use, or threatened use of physical force against the person
of another.” Using the categorical approach approved by
Mathis, the Eighth Circuit held that a Minnesota
conviction for second-degree assault qualifies as a violent
felony under the ACCA's force clause, which is identical
to the Guidelines' force clause. See United States v.
Lindsey, 827 F.3d 733, 740 (8th Cir.)
(“[S]econd-degree assault under Minn. Stat. §
609.222 requires the use, attempted use, or threatened use of
physical force against another and therefore qualifies as a
violent felony for ACCA purposes.”), cert.
denied, 137 S.Ct. 413 (2016). And the Seventh Circuit,
correctly using the modified categorical approach, held that
a Minnesota conviction for felony fifth-degree assault, which
uses the same definition of assault as second-degree assault,
qualifies as a violent felony under the ACCA's force
clause. United States v. Ker Yang, 799 F.3d 750, 756
(7th Cir. 2015) (“A conviction under [Minn. Stat.
§ 609.224(4)] qualifies as a violent felony because it
has ‘as an element the use, attempted use, or
threatened use of physical force against the person of
another.'” (quoting 18 U.S.C. §
924(e)(2)(B)(i))). The sentencing court did not err in
finding that Turnage's conviction for second-degree
assault under Minn. Stat. § 609.222 qualifies as a
violent crime. It plainly appears that Turnage is not
entitled to relief under § 2241, so I will dismiss his