United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
petitioner Carl Lee Richardson 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 2007 conviction
for being a felon in possession of a firearm. Richardson has
filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241 challenging his conviction and sentence on
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 Richardson is not entitled to
relief. As discussed below, Richardson is not entitled to the
relief he seeks, so I will dismiss the petition.
the following facts from Richardson's petition, Dkt. 1,
and publicly available case records.
a 2007 jury trial, Richardson was found guilty of one count
of being a felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1) in the United States District Court for the
District of Minnesota. He was sentenced under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924, which
imposes a mandatory minimum 15-year sentence of imprisonment
on defendants convicted of being a felon in possession of a
firearm who have three or more previous convictions for a
violent felony. The sentencing court found that Richardson
had been convicted of four violent felonies, all in Illinois:
aggravated battery with great bodily harm, aggravated
kidnapping, aggravated battery in a public place, and
aggravated battery of a peace officer. Richardson appealed
his conviction; the Eighth Circuit Court of Appeals affirmed.
United States v. Richardson, 537 F.3d 951 (8th Cir.
2008), cert, denied, 556 U.S. 1239 (2009).
2009, Richardson moved to vacate or set aside his conviction
under 28 U.S.C. § 2255 in the District of Minnesota. The
motion was denied. In 2015, Richardson moved the Eighth
Circuit for permission to file a second § 2255 petition
in the District of Minnesota challenging his sentence under
Samuel Johnson v. United States, 135 S.Ct. 2551
(2015), which held that the residual clause of the ACCA's
definition of a violent felony was unconstitutionally vague.
The Eighth Circuit granted the motion in part, allowing
Richardson to challenge the determination that he was an
armed career criminal under the ACCA but not the
determination that he was a career offender and an armed
career criminal under the U.S. Sentencing Guidelines.
Richardson v. United States, 623 Fed.Appx. 841 (8th
Cir. 2015) (per curiam). After Richardson's § 2255
petition was fully briefed, the District of Minnesota denied
it because it determined that the
aggravated-battery-of-a-peace-officer offense qualified as a
violent felony under the ACCA's force clause, and
Richardson conceded that the
aggravated-battery-resulting-in-great-bodily-harm offense and
aggravated napping offense qualified as violent felonies
under the force clause, too. United States v.
Richardson, No. 16-cv-1735, 2016 WL 6650833 (D. Minn.
Nov. 9, 2016).
current § 2241 petition, Richardson lists six grounds
for relief: (1) the trial court engaged in judicial
misconduct when it presented Richardson's indictment to
the jury; (2) his sentence is unconstitutional because a jury
did not find the facts that the sentencing judge used to
increase his sentence; (3) the postconviction court erred in
denying his second § 2255 petition; (4) his conviction
was unconstitutional because the government did not prove
beyond a reasonable doubt each of the elements of the crime;
(5) his appellate counsel was ineffective for failing to
challenge his sentence under the ACCA; and (6) his trial
counsel was ineffective for allowing the court to enhance his
sentence using his juvenile convictions. He also cites to
Mathis v. United States, 136 S.Ct. 2243 (2016), as a
"statutory interpretation" case. Dkt. 1, at 16.
postconviction relief to federal prisoners generally must
proceed under § 2255, Richardson brings this challenge
under § 2241. A federal prisoner "may 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)).
'"Inadequate or ineffective' means that 'a
legal theory that could not have been presented under §
2255 establishes the petitioner's actual
innocence.'" Hill v. Werlinger, 695 F.3d
644, 648 (7th Cir. 2012) (quoting Taylor v. Gilkey,
314 F.3d 832, 835 (7th Cir. 2002)). The Seventh Circuit has
established that three conditions must be present before a
petitioner can proceed under § 2241 pursuant to the
"inadequate or ineffective" exception. First, the
petitioner must be relying on a new statutory-interpretation
case-rather than a constitutional case-because § 2255
offers relief to prisoners who rely on new constitutional
cases. Second, the petitioner must be relying on a decision
that is retroactive on collateral review and that he could
not have invoked in his § 2255 petition. Third, the
error that the petitioner identifies must be grave enough 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, 611-12 (7th Cir. 1998).
Richardson cannot demonstrate that any of his grounds for
relief meet all three Davenport conditions. He
relies-with two exceptions that I'll discuss below-on
constitutional cases that were decided before his conviction.
See, e.g., Blakely v. Washington, 542 U.S. 296
(2004); Apprendi v. New Jersey, 530 U.S. 466 (2000).
These are not statutory interpretation cases, and Richardson
could have invoked them in his § 2255 petitions.
Richardson does not identify new statutory interpretation
cases supporting any of his six grounds for relief, and I can
think of none. Because these six grounds do not meet the
first two Davenport conditions, I need not reach
I'll address the two exceptions. Richardson cites
Johnson and Mathis, which are both
statutory interpretation cases. Johnson applies
retroactively. See Holt v. United States, 843 F.3d
720, 722 (7th Cir. 2016). But Richardson could have
invoked Johnson in his second § 2255
petition-in fact, he did invoke Johnson. See
Richardson, No. 16-cv-1735, Dkt. 65, at 8 (D. Minn. May
26, 2016). The fact that the District of Minnesota denied
Richardson's § 2255 petition challenging his
sentence under Johnson does not entitle him to file
a § 2241 petition here. "Section 2255 is not
'ineffective' just because a court decides adversely
to the petitioner." Harris v. Warden, 425 F.3d
386, 388 (7th Cir. 2005). So any claim based on
Johnson does not meet Davenport's
Mathis, I assume that it applies retroactively.
See Jackson v. Williams, No. 17-cv-319, 2017 WL
3668850, at *2 (W.D. Wis. Aug. 23, 2017). Richardson states
that he "does not claim any citations are retroactive
and waives any argument to that fact, " Dkt. 1, at 16,
but I won't hold him to that. It's unclear whether
Richardson could have invoked Mathis in his second
§ 2255 petition: Richardson filed his petition before
the Supreme Court decided Mathis, but despite that,
the District of Minnesota considered Mathis. See
Richardson, 2016 WL 6650833, at *3. Even if I assume
that Richardson's Mathis claim survives the
first two Davenport conditions, he plainly cannot
satisfy the third condition because he has not identified any
error under Mathis, let alone a miscarriage of
Mathis, the Court reaffirmed the proper process for
determining whether a defendant's prior state-law
conviction is a violent felony under the ACCA: the
"categorical approach." 136 S.Ct. at 2248. Under
the categorical approach, the sentencing court should look to
the statutory definition of the offense to see if the
elements satisfy the ACCA's definition of a violent
felony. Only if the state law "define[s] multiple
crimes" by listing "elements in the
alternative" should the sentencing court 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" and then
review those elements to see if they satisfy the ACCA's
definition. Id. at 2249. Challenges under
Mathis, therefore, focus on whether the sentencing
court erroneously applied the modified categorical approach
to an indivisible statute, one that lists "various
factual means of committing a single element" rather
than alternative elements. Id. (Were a court to
apply the categorical approach to a divisible statute, the