United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
prisoner Dean Guenther has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241, challenging a 2005
sentence enhancement he received under the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(1), because he had at
least three prior convictions for a “violent felony or
a serious drug offense” and had been found to be a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). His three prior convictions consisted of
three prior Minnesota burglary convictions. Relying on
United States v. Mathis, 136 S.Ct. 2243 (2016),
petitioner contends that none of those burglary convictions
constituted a “violent felony” under §
924(e)(1), so he does not qualify for a sentence enhancement.
The government has responded to the petition.
explained below, I conclude that petition is not entitled to
relief under Mathis because Mathis is not
retroactive. Neff v. Williams, case no.
16-cv-749-bbc (Aug. 17, 2017) (finding same); Van Cannon
v. United States, case nos. 16-cv-433-bbc and
08-cr-185-bbc (Jul. 10, 2017) (same). Accordingly, the
petition will be dismissed.
a federal prisoner challenging his conviction or sentence
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).
If a prisoner has filed one § 2255 motion, as petitioner
has in this case, he must obtain permission from the court of
appeals before he may file a second or successive motion. 28
U.S.C. § 2255(h). Under certain circumstances, however,
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)).
Subsection (e) is known as § 2255's “savings
Seventh Circuit has established three conditions that must be
present before a petitioner can proceed under §
2255(e)'s “inadequate or ineffective”
exception. First, the petitioner must be relying on a new
case of statutory interpretation, rather than on a
constitutional case, because prisoners who rely on new
constitutional cases may pursue relief under § 2255(h).
Second, the petitioner must be relying on a decision that is
retroactive on collateral review and that could not have been
invoked in his first § 2255 petition. Third, the error
that the petitioner identifies must be grave enough to be
deemed a miscarriage of justice. Montana v. Cross,
829 F.3d 775, 783 (7th Cir. 2016); Light v. Caraway,
761 F.3d 809, 812-13 (7th Cir. 2014); In re
Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998).
instance, petitioner has satisfied the first condition
because he has identified a new case of statutory
interpretation: United States v. Mathis, 136 S.Ct.
2243 (2016). In Mathis, the Supreme Court held that
a prior conviction counts as a predicate crime under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), only
“if its elements are the same as, or narrower than,
those of the generic offense.” Id. at 2248.
Mathis addressed a “burglary” conviction
in particular, holding that a “burglary” could be
a predicate violent felony only if it contained the following
elements and no others: an “unlawful entry into a
building or structure” without consent and with intent
to commit a crime. Id. at 2250. Thus, a burglary
would not qualify as a predicate violent felony under the Act
if it criminalized entry into a building or structure or
land, water or air vehicle, as Iowa did under Iowa Code
§ 702.12 (2013) (emphasis added). Id. As the
court explained in Mathis, “those listed
locations are not alternative elements, going toward the
creation of separate crimes . . . [but] alternative ways of
satisfying a single locational element.” Id.
Mathis was decided, the Court of Appeals for the
Eighth Circuit held in McArthur v. United States,
850 F.3d 925 (8th Cir. 2017), that a Minnesota statute
criminalizing third degree burglary did not qualify as a
predicate crime. The court found the statute
“divisible, that is, it set forth two alternative
versions of the way in which the crime of third degree
burglary could be committed: either by entering a building
without consent and with intent to steal or commit a felony
or gross misdemeanor while in the building” or by
“enter[ing] a building without consent and steal[ing]
or commit[ting] a felony or gross misdemean while in the
building.” Id. at 939. Petitioner cites
Mathis and McArthur to challenge his
sentencing court's reliance on two prior Minnesota
convictions for first degree burglary and one prior
conviction for second degree burglary.
even though petitioner has identified a new case of statutory
interpretation, his § 2241 petition fails because I
conclude that Mathis is not retroactive. Contrary to
other decisions that the Supreme Court has reached concerning
the Armed Career Criminal Act, the Court has not found that
Mathis retroactive. For example, after the Court
held the residual clause of the Act unconstitutional in
Johnson v. United States, 135 S.Ct. 2551 (2015), it
issued a ruling making it explicit that the holding applied
retroactively to prior convictions that had been based on the
residual clause. Welch v. United States, 136 S.Ct.
addition, the decision in Mathis does not meet the
usual criteria for retroactivity. Instead of recognizing a
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.
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 motion under 28 U.S.C. § 2255 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 Holt's motion was his second
§ 2255 motion and could not be heard unless 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
concluded that the petitioner could not proceed because
Mathis was a case of statutory interpretation, not a
new rule of constitutional law. Id. at 722. As
relevant here, however, the court of appeals stated 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)). The court did not explain why it considered
Mathis a new substantive rule and further noted that
it need not resolve “[w]hether [Holt] might be entitled
to relief under 28 U.S.C. § 2241.” Id. at
724. 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
Rule 11 of the Rules Governing Section 2254 Cases (which can
be applied to cases under § 2241 as well), the court
must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. The question
is whether “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).
Because Holt creates some ambiguity, there is room
for debate about how the court of appeals might resolve
petitioner's claim. Accordingly, I will issue petitioner
a certificate of appealability.