Freddie Camacho v. L.C. Ward

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Frank H. Easterbrook, Circuit Judge, concurring, and Kenneth F. Ripple, Circuit Judge. [6863378-1] [6863378] [16-3509]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-3509
FREDDIE CAMACHO,
Petitioner-Appellant,
v.
NICOLE ENGLISH, Warden,
Respondent-Appellee.

Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:15-cv-00388-jdp — James D. Peterson, Chief Judge.

ARGUED MAY 23, 2017 — DECIDED AUGUST 22, 2017

Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
BAUER, Circuit Judge. Petitioner-appellant Freddie Camacho, a federal prisoner incarcerated in Oxford, Wisconsin,
appeals the district court’s dismissal of his petition for a writ
of habeas corpus under 28 U.S.C. § 2241. He argues that he
may pursue relief under § 2241 because 28 U.S.C. § 2255 is an
inadequate or ineffective remedy.

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I. BACKGROUND

In 1998, Camacho was convicted by a jury in the Southern
District of Texas of kidnapping, in violation of 18 U.S.C.
§ 1201(a). The kidnapping victim was later found dead.
Section 1201(a) includes a provision stating that the commission of a kidnapping “shall be punished by imprisonment
for any term of years or for life and, if the death of any person
results, shall be punished by death or life imprisonment.” The
district court sentenced Camacho to life imprisonment under
U.S.S.G. § 2A4.1(c), which cross-references the Sentencing
Guidelines for murder, and to five years of supervised release.
The Fifth Circuit affirmed his conviction and sentence. Camacho filed a petition for writ of certiorari to the United States
Supreme Court, which was denied on June 1, 1999.
Camacho filed a § 2255 petition on July 31, 2002, arguing
that because murder was not charged, submitted to the jury,
or proven beyond a reasonable doubt, his due process rights
were violated, and the court lacked authority to impose a life
sentence. On September 29, 2003, the district court denied the
motion and declined to issue a certificate of appealability. The
Fifth Circuit also declined to issue a certificate of appealability.
On June 24, 2014, Camacho sought leave to file a successive
§ 2255 motion, relying upon Alleyne v. United States, 133 S. Ct.
2151 (2013) and Burrage v. United States, 134 S. Ct. 881 (2014), to
argue that his life sentence was unconstitutional. The Fifth
Circuit denied his motion on August 19, 2014. On June 24,
2015, Camacho filed a § 2241 petition in the Western District of
Wisconsin. He again argued that under Burrage his life sentence was unlawful because the jury was not asked to deter-

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mine whether Camacho’s conduct caused the death of the
victim. The district court denied the petition on September 12,
2016, finding: (1) Burrage did not apply to Camacho’s case; and
(2) the petition did not meet the criteria for collateral review
under In re Davenport, 147 F.3d 605 (7th Cir. 1998).
Camacho filed a notice of appeal and a motion for reconsideration on September 23, 2016, but withdrew this motion. This
appeal followed.
II. DISCUSSION
We review de novo a district court’s denial of relief under
§ 2241. Hill v. Werlinger, 695 F.3d 644, 647 (7th Cir. 2012).
Federal prisoners who seek to collaterally attack their conviction or sentence must ordinarily bring an action under § 2255,
“the federal prisoner’s substitute for habeas corpus.” Brown v.
Rios, 696 F.3d 638, 640 (7th Cir. 2012). However, a federal
prisoner may petition under § 2241 “if his section 2255 remedy
‘is inadequate or ineffective to test the legality of his detention.’” Id. (quoting 28 U.S.C. § 2255(e), the “Savings Clause”).
“This generally requires a structural problem in § 2255 that
forecloses even one round of effective collateral review,
unrelated to the petitioner’s own mistakes.” Poe v. LaRiva, 834
F.3d 770, 772 (7th Cir. 2016) (citation, quotation marks, and
alteration omitted).
As established in Davenport, a petitioner who seeks to
invoke the Savings Clause of § 2255(e) to proceed under § 2241
must demonstrate: (1) that he relies on “not a constitutional
case, but a statutory-interpretation case, so [that he] could
not have invoked it by means of a second or successive
section 2255 motion;” (2) that the new rule applies retroactively

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to cases on collateral review and could not have been invoked
in his earlier proceeding; and (3) that the error is “grave
enough … to be deemed a miscarriage of justice corrigible
therefore in a habeas corpus proceeding,” such as one resulting
in “a conviction for a crime of which he was innocent.” Brown,
696 F.3d at 640; see also Davenport, 147 F.3d at 610–12.
Camacho argues that his § 2241 petition satisfies the criteria
for collateral review in Davenport and that Burrage applies
equally to the “death results” language in 18 U.S.C. § 1201(a).
The central issue in Burrage was whether a defendant may be
sentenced under the enhanced penalty provision of 21 U.S.C.
§ 841(b)(1)(C) (a 20-year mandatory minimum sentence where
“death results” from the use of an unlawfully distributed
drug), if the use of the drug “contributes to, but is not a but-for
cause of, the victim’s death.” 134 S. Ct. at 885. The court
concluded that “but-for” causation is required in order for the
enhanced penalty to apply. Id. at 892.
In reaching its holding on the “death results” sentence
enhancement, the Burrage court noted that the crime at issue
contained two elements: (1) knowing or intentional distribution of the controlled substance under § 841(a)(1); and (2) death
resulting from the use of the drug under § 841(b)(1)(C). Id. at
887. The court reasoned that both elements must be found by
a jury beyond a reasonable doubt, consistent with Alleyne and
Apprendi v. New Jersey, 530 U.S. 466 (2000). Id. Camacho
contends that his life sentence is in violation of Burrage because
the judge rather than the jury made the “death results”
determination in 18 U.S.C. § 1201(a), and but-for causation was
not established.

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As an initial matter, we note that Burrage is a statutoryinterpretation case. Furthermore, we have found that it is a
substantive decision that narrows the scope a federal criminal
statute, and therefore applies retroactively to cases on collateral
review. Krieger v. United States, 842 F.3d 490, 497–500 (7th Cir.
2016); see also Prevatte v. Merlak, No. 15-2378, ---F.3d---, 2017
WL 3262282 at *4 (7th Cir. Aug. 1, 2017). Nevertheless, these
findings cannot save Camacho’s § 2241 petition, as Burrage is
inapplicable here.
First, we address Camacho’s claim that the district judge
rather than the jury made the “death results” determination in
violation of Burrage. As the district court recognized, the
concept that a jury must decide any fact that increases the
minimum and maximum sentences flows from Apprendi and
Alleyne; Burrage merely applied it to the Controlled Substances
Act. In fact, the Burrage court specifically relied on both
Apprendi and Alleyne in finding that because the “death results”
enhancement increased the minimum and maximum sentences, it must be submitted to the jury and found beyond a
reasonable doubt. See 134 S. Ct. at 887. In Krieger, we observed
that “[t]he Burrage holding is not about who decides a given
question (judge or jury) or what the burden of proof is (preponderance versus proof beyond a reasonable doubt). It is
rather about what must be proved.” 842 F.3d at 499–500.
Because neither Alleyne nor Apprendi has been found to be
retroactive on collateral review, Camacho may not advance
this claim in his § 2241 petition. See Crayton v. United States,
799 F.3d 623, 624–25 (7th Cir. 2015); Curtis v. United States, 294
F.3d 841, 842 (7th Cir. 2002); see also Poe, 834 F.3d at 773 (Alleyne
is a constitutional case).

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Moving to Camacho’s second claim, we are not persuaded
that Burrage’s “but- for” causation requirement applies to 18
U.S.C. § 1201(a). In Burrage, the victim had taken a number of
different drugs in addition to heroin that the defendant sold
to him. The salient issue was whether the victim’s death
“result[ed] from the use of” the heroin sold to him by the
defendant. 134 S. Ct. at 886. The Burrage court limited its
holding, finding that “at least where use of the drug distributed by the defendant is not an independently sufficient cause
of the victim’s death … a defendant cannot be liable under the
penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)
unless such use is a but-for cause of death … .” Id. at 892. In
contrast, § 1201(a)’s enhancement provision requires simply
that “the death of any person results[;]” the specific cause of
death is immaterial. Therefore, but-for causation is incompatible with the statutory goal of § 1201(a).
Moreover, Camacho was not sentenced pursuant to the
“death results” provision in 18 U.S.C. § 1201(a); he was
sentenced pursuant to the cross-reference provision for murder
contained in U.S.S.G. § 2A4.1(c). This provision does not
contain the “death results” language at issue in Burrage.
Therefore, we agree with the district court that Burrage is not
applicable to Camacho’s § 2241 petition.
Camacho’s attempt to shoehorn his claims under Burrage
are unsuccessful, and he has not demonstrated that he is
relying on a statutory-interpretation case that applies retroactively on collateral review. Thus, his § 2241 petition fails to
meet the first two Davenport factors. In addition, Camacho has
not established that any sentencing error occurred, let alone
one that was a “miscarriage of justice,” and so he has failed to

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meet the third Davenport factor. Camacho has not shown that
his § 2255 remedy was “inadequate or ineffective[;]” thus, his
§ 2241 petition is denied.
III. CONCLUSION
The district court’s denial of Camacho’s petition for a writ
of habeas corpus is AFFIRMED.

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EASTERBROOK, Circuit Judge, concurring. For the reasons
given in Brown v. Caraway, 719 F.3d 583, 596–601 (7th Cir.
2013) (statement concerning the Rule 40 circulation), and
Webster v. Daniels, 784 F.3d 1123, 1146–54 (7th Cir. 2015) (en
banc) (dissenting), I believe that In re Davenport, 147 F.3d 605
(7th Cir. 1998), misunderstands 28 U.S.C. §2255(e). Davenport
and its successors such as Brown and Webster have not persuaded other circuits, see McCarthan v. Director of Goodwill
Industries–Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en
banc); Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and the Supreme Court needs to decide whether
§2255(e) permits litigation of this kind. But I join the court’s
opinion today, because Camacho is not entitled to relief even
under the standards of Davenport and Webster.