United States District Court, W.D. Wisconsin
PHILLIP E. BOOSE, Petitioner,
LOUIS WILLIAMS, II, Respondent.
OPINION AND ORDER
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.
Boose seeks 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 challenges 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. The petition is
now fully briefed. I conclude that Boose is not entitled to
habeas relief, so I will dismiss the petition.
2003, a jury in the United States District Court for the
Western District of Missouri convicted Boose of being a felon
in possession of ammunition in violation of 18 U.S.C. §
922(g)(1). See United States v. Boose, No.
03-cr-15-HFS (W.D. Mo.); see also United States v.
Boose, 92 Fed. App’x 377, 378 (8th Cir. 2004). The
sentencing court applied an enhanced sentence under the ACCA
based on Boose’s three prior Missouri drug convictions.
Boose appealed the sentence and later filed several
unsuccessful postconviction motions under 28 U.S.C.
§§ 2255 and 2241 attacking various aspects of his
convictions and sentence. Following the United States Supreme
Court’s decision in Mathis, Boose filed his
current § 2241 petition.
challenges his ACCA sentence under Mathis, a case in
which the Supreme Court clarified when it would be
inappropriate for sentencing courts to apply the
“modified categorical approach” to criminal
statutes capable of being violated in multiple ways. 136
S.Ct. 2243. In this case, Boose contends that his sentencing
court erroneously found that his prior Missouri convictions
for sale of a controlled substance were serious drug offenses
under the ACCA. More specifically, he contends that the
Missouri criminal statute under which he was convicted
criminalized conduct that fell outside the scope of what the
ACCA considers a “serious drug offense.” The ACCA
defines a serious drug offense as “an offense . . .
involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance .
. . for which a maximum term of imprisonment of ten years or
more is prescribed by law.” 18 U.S.C. §
contends that Boose’s petition should be denied because
his challenges to the applicability of the ACCA to his
Missouri convictions were not foreclosed by existing Eighth
Circuit law at the time he brought a § 2255 motion in
2005. So, because Boose could have raised this issue when he
brought his § 2255 motion, he is foreclosed from
bringing it now. I need not consider respondent’s
argument about whether Boose could properly have raised his
arguments in his earlier § 2255 motion, because Boose
loses on the merits of his Mathis argument.
was convicted under Missouri Revised Statute § 195.211
(1999) (“Distribution, delivery, manufacture or
production of a controlled substance”), which stated in
it is unlawful for any person to distribute, deliver,
manufacture, produce or attempt to distribute, deliver,
manufacture or produce a controlled substance or to possess
with intent to distribute, deliver, manufacture, or produce a
argument concerns the scope of the statutory term
“deliver.” The definition provision of the
Missouri drug-regulation statutes, Missouri Revised Statute
§ 195.010 (1999), defined “deliver” or
“delivery” as “the actual, constructive, or
attempted transfer from one person to another of drug
paraphernalia or of a controlled substance, or an imitation
controlled substance, whether or not there is an agency
relationship, and includes a sale.” Mo. Rev. Stat.
§ 195.010(8). In turn, “sale” was defined to
“include barter, exchange, or gift, or offer
therefor, and each such transaction made by any person,
whether as principal, proprietor, agent, servant or
employee.” Section 195.010(36).
main argument is that that this statutory scheme prohibits a
range of conduct wider than that defined as a “serious
drug offense” by the ACCA. The argument is that under
Missouri law, “deliver” can mean a “sale,
” which in turn could mean several different things,
including merely offering to sell drugs. And, according to
Boose, merely offering to sell drugs is not a predicate
offense under the ACCA.
argument has some support in decisions from jurisdictions
outside Missouri. For example, the Court of Appeals for the
Tenth Circuit has held that a Kansas statute that
criminalized a mere offer to sell drugs without the actual
intent to sell was not a controlled substance offense under
the Career Offender Guidelines. See United States v.
Madkins, 866 F.3d 1136 (10th Cir. 2017). In United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), the
Court of Appeals for the Fifth Circuit analyzed a similar
statute under Mathis, concluding that the statute
was not divisible. The court’s decision implied that a
mere offer to sell, without the intent to sell, would not be
a controlled substance offense under the Career Offender
Guidelines. Because the concept of controlled substance
offense under the Guidelines is essentially the same as
“serious drug offense” under the ACCA, these
Career Offender Guidelines cases would offer some support for
do not have to rely on cases outside of Missouri. The
Missouri Court of Appeals analyzed the elements of §
195.211 in State v. Sammons, 93 S.W.3d 808,
810–812 (Mo. App. 2002). In that case, the defendant
had offered to sell cocaine, took the buyer’s money,
and left, presumably to retrieve the cocaine. But the
defendant never returned, so there was no actual delivery of
cocaine. The Court of Appeals overturned the conviction, on
the grounds that there was insufficient evidence to support a
jury finding that the defendant actually intended to sell
cocaine. “Since Defendant took the money and never
returned, it is equally reasonable to infer that Defendant
never intended to transfer anything to [the buyer]. He simply
stole his money. That would clearly be a crime, but not the
sale of a controlled substance.” Id. at 812.
So, according to the Missouri Court of Appeals, §
195.211 does not criminalize the mere utterance of an offer
to sell a controlled substance; it covers only a sincere
offer in which the defendant intends to sell.
Court of Appeals for the Eighth Circuit relied on
Sammons in holding that a conviction under §
195.211 is a controlled substance offense under the Career
Offender Guidelines. United States v. Thomas, 886
F.3d 1274, 1277 (8th Cir. 2018) (“Thomas's
convictions . . . require more than ‘mere words of an
offer’ for a sale, thus qualifying as controlled
substance offenses.” (citing Sammons));
see also Murray v. Werlich, No. 17-CV-141-CJP, 2018
WL 2266727, at *3 (S.D. Ill. May 17, 2018) (“Sale
‘includes barter, exchange, or gift, or offer therefor,
’ each of ...