United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE.
Mark Neff is a federal prisoner who was convicted in 1994 in
the United States District Court for the Central District of
Illinois for being a felon in possession of a firearm, 18
U.S.C. § 922(g)(1), and sentenced as a armed career
criminal under § 924(e)(1) based in part on a prior
conviction for burglary in Illinois in 1984. Dkt. #1;
Neff v. United States, 129 F.3d 119 (7th Cir. 1997)
(“In the spring of 1984, he pleaded guilty to two
counts of residential burglary in Greene County, Illinois and
was sentenced to a five-year prison term.”). Petitioner
is now incarcerated in this district at the Federal
Correctional Institution in Oxford, Wisconsin. He brings a
petition for a writ of habeas corpus under 28 U.S.C. §
2241 in which he contends that the 1984 Illinois burglary
conviction can no longer be used to enhance his sentence in
light of the recent decision in Mathis v. United
States, 136 S.Ct. 2243, 2248-50 (2016), in which the
Supreme Court held that a burglary counts as a predicate
crime under the Armed Career Criminal Act only “if its
elements are the same as, or narrower than, those of the
generic offense, ” which requires unlawful entry into a
“building or other structure.”
March 20, 2017, I screened the petition and directed Warden
Louis Williams II to respond. Dkt. #5. Respondent filed a
response to the petition on May 24, 2017, in which he argues
that Mathis is of no help to petitioner because the
Illinois residential burglary statute under which petitioner
was convicted is no broader than generic burglary. Dkt. #9.
in the screening order that although the Supreme Court has
not held expressly that the Mathis decision applies
retroactively to cases like petitioner's, I was willing
to consider petitioner's substantive arguments in light
of the fact that a few district courts in this circuit have
found that Mathis is retroactive because it
announced a substantive rule of law. On reflection, I
disagree with those decisions. As I concluded recently in
another case, Van Cannon v. United States, case nos.
16-cv-433-bbc and 08-cr-185-bbc (Jul. 10, 2017), I cannot
consider the merits of petitioner's argument under
Mathis because I find that the decision is not
retroactive. This means that petitioner still has three
predicate convictions and that his petition for habeas corpus
relief must be denied.
explained in the screening order, a federal prisoner
challenging his conviction or sentence ordinarily must do so
on direct appeal or in a motion filed under 28 U.S.C. §
2255 in the district in which he was convicted. Brown v.
Caraway, 719 F.3d 583, 586 (7th Cir. 2013). However,
§ 2255(e) allows a federal prisoner to “petition
under section 2241 instead if his section 2255 remedy is
‘inadequate or ineffective to test the legality of his
detention.'” Brown v. Rios, 696 F.3d 638,
640 (7th Cir. 2012) (quoting 28 U.S.C. § 2255(e)).
Respondent does not contest that § 2255(e) applies in
this case. To satisfy § 2255(e), a prisoner must show
three things: (1) his petition is based on a rule of
statutory law; (2) he is relying on a retroactive decision
that he could not have invoked in his first § 2255
motion; and (3) the sentence enhancement must have been a
grave enough error to be deemed a miscarriage of justice.
Light v. Caraway, 761 F.3d 809, 812-13 (7th Cir.
2014); In re Davenport, 147 F.3d 605, 610-12 (7th
Cir. 1998). Although petitioner can satisfy the first
requirement and he has made strong arguments that his
sentence enhancement violates the holding in Mathis,
he cannot satisfy the second requirement related to
to other decisions the Supreme Court has reached concerning
the Armed Career Criminal Act, the Court has not issued an
express ruling finding Mathis retroactive. For
example, in the year following its holding that residual
clause of the Act was unconstitutional in Johnson v.
United States, 135 S.Ct. 2551 (2015), it issued a ruling
making it explicit that holding applied retroactively to
prior convictions that had been based on the residual clause.
Welch v. United States, 136 S.Ct. 1237 (2016).
addition, the decision in Mathis does not meet the
usual criteria for retroactivity. Instead of recognizing a
new right that has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review, 28 U.S.C. § 2255(f)(3), the Court merely
reaffirmed its 1990 holding in Taylor v. United
States, 495 U.S. 575 (1990), that “a prior
conviction cannot qualify as an [Armed Career Criminal Act]
predicate if its elements are broader than those of a listed
generic offense.” Mathis, 136 S.Ct. at 2251.
In other words, this is not an issue on which “new law
has been made since the time of the appeal.” Davis
v. United States, 417 U.S. 333, 342 (1974) (holding that
collateral relief from federal conviction is available when
there is intervening change in substantive law). Instead,
petitioner is raising an issue that has been settled since
the Court decided in Taylor, 27 years ago, that for
Armed Career Criminal Act purposes, “burglaries”
are limited to those whose elements make up the generic form
of the offense, that is, unlawful entry into a building or
structure without consent and with intent to commit a crime.
Mathis, 136 S.Ct. at 2247 (“For more than 25
years, our decisions have held that the prior crime qualifies
as an ACCA predicate if, but only if, its elements are the
same as, or narrower than, those of the generic
offense.”). Accordingly, I conclude that petitioner has
no ground on which to argue that he is raising an issue of
new law and that his motion for habeas corpus relief must be
conclusion seems straightforward, but the court of
appeals' language in a recent case, Holt v. United
States, 843 F.3d 720 (7th Cir. 2016), gives me pause.
Holt filed a collateral attack on an old sentence imposed on
him under the Armed Career Criminal Act, contending that the
sentencing court had erred in attributing a prior burglary
offense to him. His motion was denied, but shortly afterward
the court of appeals found that the particular version of the
burglary offense of the Illinois statutes at issue was not a
violent felony “because it did not satisfy the
definition of burglary used in Mathis” for
indivisible statutes.” Id. at 721 (citing
United States v. Haney, 840 F.3d 472 (7th Cir.
2016)). After supplemental briefing, the court of appeals
concluded that the motion was petitioner's second
collateral attack and could not be heard unless the court
were to certify that it rested on newly discovered evidence
or was “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court that has previously been unavailable.” §
2255(h)(2). The court of appeals added that
“substantive decisions such as Mathis
presumptively apply retroactively on collateral review,
” id. (citing Montgomery v.
Louisiana, 136 S.Ct. 718 (2016); Davis, 417
U.S. 333 (1974)), but did not explain why it considered
Mathis a new substantive rule of federal
constitutional dimensions. Although the statements in
Holt do not change my conclusion in petitioner's
case, I will issue petitioner a certificate of appealability
so that he may challenge my decision in the court of appeals
if he chooses to.
Rule 11 of the Rules Governing Section 2255 Proceedings, the
court must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). This means that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted). In this case, I
cannot say that petitioner has failed to make a substantial
showing of a denial of a constitutional right, so the
certificate will issue.
ORDERED that petitioner Mark Neff's petition for habeas
corpus relief is DENIED. A ...