United States District Court, W.D. Wisconsin
PHILLIP E. BOOSE, Petitioner,
MATTHEW MARSKE, Respondent.
D. PETERSON, DISTRICT JUDGE
Phillip E. Boose, appearing pro se, is a prisoner in the
custody of the Federal Bureau of Prisons currently housed at
the Federal Correctional Institution in Oxford, Wisconsin.
The matters before the court concern Boose's requests
that I reconsider my denial of his habeas petition, Dkt. 34,
and that I allow him to amend his petition, Dkt. 40. I will
deny both requests.
sought a writ of habeas corpus under 28 U.S.C. § 2241,
challenging his 2003 conviction in the Western District of
Missouri for being a felon in possession of ammunition, with
an enhanced sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), based on three prior
Missouri drug convictions. Boose's original petition
challenged his sentence under Mathis v. United
States, 136 S.Ct. 2243 (2016), contending that the
Missouri criminal statutes defining his predicate offenses
prohibited conduct broader than the conduct contemplated by
the ACCA. In particular, Boose contended that the Missouri
statute under which he was convicted, § 195.211 (1999)
(“Distribution, delivery, manufacture or production of
a controlled substance”), criminalized mere offers to
sell controlled substances, and that the definition of
“delivery” included the attempted transfer of an
imitation controlled substance. I denied Boose's
petition, on the grounds that Missouri case law clarified
that the statutes did not criminalize a mere offer without
intent to sell, and that the transfer of imitation drugs was
covered by an entirely different statute. Dkt. 32.
motion for reconsideration of that decision, Dkt. 34, cites
decisions issued after he filed his petition, United
States v. Elder, 900 F.3d 491 (7th Cir. 2018), and
Martinez v. Sessions, 893 F.3d 1067 (8th Cir. 2018),
to support another Mathis-type theory: that the
Missouri drug convictions cannot be used for an ACCA
enhancement because Missouri included in its list of
controlled substances salvia divinorum and ephedrine, which
are not listed in the federal Controlled Substances Act.
Thus, Boose's argument goes, the Missouri statute
criminalizes more conduct than does the federal law, and thus
his conviction cannot be a predicate felony drug offense. (As
respondent explains, Boose is mistaken in part. Salvia
divinorum was not listed in Missouri's
controlled-substance schedule at the time of Boose's
conviction. But ephedrine was in the Missouri schedule at the
Elder, the Court of Appeals for the Seventh Circuit
concluded that an Arizona drug conviction did not qualify as
a felony drug offense under 21 U.S.C. § 802(44). 900
F.3d at 503. Arizona's definition of “dangerous
drug” was broader than the definition of a felony drug
offense because it included substances not covered by §
802(44). But, critically, the Arizona statute was not a
statute “divisible” by drug type-which is to say
that different drugs constitute different means of
committing the Arizona crime, and not different elements
constituting separate crimes. Id. at 502-03.
Martinez, an appeal from the Board of Immigration
Appeals, the Court of Appeals for the Eighth Circuit
concluded that the Missouri statute was divisible, unlike the
Arizona statute. Under the Missouri law, the particular drug
was an element of the crime. In this case, respondent
supplemented its briefing with a recent Eighth Circuit case
that came to the same conclusion in an ACCA case. United
States v. Jones, No. 18-2489, 2019 WL 3884258, at *1
(8th Cir. Aug. 19, 2019). The holdings in Martinez
and Jones that the Missouri statute is divisible
would seem to foreclose Boose's Mathis-type
challenge to his conviction.
Boose argues that there is a material difference between the
Martinez case and his. In Martinez, the
record of conviction established that Martinez possessed
methamphetamine, a particular substance prohibited under both
the Missouri statute and federal law. Boose says that the
records of his conviction-the so-called
“Shepard documents”-do not verify that
he was convicted on the basis of a controlled substance
prohibited under federal law. So, he says, under the modified
categorical approach his drug convictions are not ACCA
argument has two problems. First, if Boose's challenge is
that the Shepard documents don't support the
ACCA enhancement, his Mathis-based challenge is
probably untimely because he is not really relying on the
recent decision in Elder. Second, Boose's
argument is factually unsupported: the charging documents for
all three of his Missouri convictions show that Boose was
charged with delivering cocaine base, which is a controlled
substance under federal law, and thus counts under the ACCA.
See Dkt. 38-1, at 2-3. So that dooms his motion for
also moves to amend his habeas petition. Dkt. 40. Here he
makes an entirely new argument: that following a recent
United States Supreme Court decision, his felon-in-possession
conviction should be vacated because the government
didn't prove that he knew that he was a felon when he
possessed ammunition. Rehaif v. United States, 139
S.Ct. 2191 (June 21, 2019) (“To convict a defendant,
the Government therefore must show that the defendant knew he
possessed a firearm and also that he knew he had the relevant
status when he possessed it.”). The government
doesn't oppose the motion to amend as procedurally
improper, and it concedes-at least for purposes of this
motion-that § 2241 is the proper avenue for this type of
challenge and that Rehaif applies retroactively. So
I will consider Boose's motion, but I will deny it
because it is futile.
can succeed on this § 2241 petition only if he can show
that he is actually innocent of the charged crime. See,
e.g., Hill v. Werlinger, 695 F.3d 644, 648 (7th
Cir. 2012). “Actual innocence” means factual
innocence, not mere legal insufficiency of proof of guilt.
Bousley v. United States, 523 U.S. 614, 623 (1998).
Boose needs to present “evidence of innocence so
strong” that “‘it is more likely than not
that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.'” House v.
Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v.
Delo, 513 U.S. 298, 316, 327 (1995)). Boose's claim
fails under this standard.
question in Rehaif was whether the government had to
prove to the jury that Rehaif knew that he was an alien
“illegally or unlawfully in the United States, ”
which barred him from possessing a firearm. The Court
concluded that the government indeed needed to prove that
Rehaif knew that he was in illegal alien status. Here the
question would be whether Boose knew that he was a felon.
Boose contends that “the government didn't endeavor
to prove [he] knew he was a felon.” Dkt. 40, at 2.
Boose is right, because under pre-Rehaif practice,
the government had to prove that Rehaif was a felon, but it
did not have to prove that Boose knew that he was a
government's failure to prove Boose's knowledge does
not mean that Boose actually lacked that knowledge. Here,
respondent has submitted transcripts from Boose's trial
showing that Boose signed a stipulation stating that he had
previously “been convicted of a felony offense for
which he could receive a term of imprisonment greater than
one year.” Dkt. 44-1, at 5-6. On direct examination,
Boose admitted that he had been convicted of several felonies
with potential sentences of more than one year, although his
prison time was either suspended or cut short. Id.
at 7-8. Boose argues that he didn't need to challenge
these facts given the issues at play in his trial and that he
had been too young to fully understand that he actually
received felony convictions. But the record, particularly
Boose's stipulation, provides more than enough evidence
to support a reasonable jury verdict that Boose knew that he
was a felon. Boose fails to meet the high actual-innocence
standard on this claim.
also says that the government didn't attempt to prove
that he knew that he was barred from possessing ammunition.
But Rehaif does not require the government to prove
a willful violation of § 922(g), only a
knowing one. This means that the government must
prove that the defendant knew that he was in one of the
categories enumerated in § 922(g), and that the
defendant knowingly possessed the prohibited item. But the