Pulliam v. Krueger

Filing 7

ORDER & OPINION entered by Chief Judge James E. Shadid on 1/10/2017: IT IS ORDERED that Pulliam's Motion 6 to Reconsider is GRANTED, the Judgment is VACATED, and the Clerk is DIRECTED to enter an Amended Judgment DENYING the Petition. SEE FULL WRITTEN ORDER & OPINION. (JRK, ilcd)

E-FILED

Tuesday, 10 January, 2017 03:25:28 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

JOSEPH PULLIAM,
Petitioner,
v.
JEFFREY KRUEGER, Warden,
Respondent.

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Case No. 16-1379

ORDER AND OPINION
This matter is now before the Court on Petitioner Pulliam’s [6] Motion to Reconsider this
Court’s dismissal of his Petition for Writ of Habeas Corpus pursuant to § 2241. For the reasons
set forth below, Pulliam’s Motion [6] is GRANTED, the Judgment is VACATED, and the Clerk
is DIRECTED to enter an Amended Judgment DENYING the Petition.
BACKGROUND
Petitioner brought this Petition under 28 U.S.C. § 2241 challenging the validity of the
sentence imposed by the United States District Court for the Western District of Missouri after
Pulliam was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§
922(g)(1) and 924(e)(1), and possession of marijuana and methamphetamine in violation of 21
U.S.C. § 844(a). His convictions and sentence were affirmed on appeal. See United States v.
Pulliam, No. 6:07-CR-03047-ODS (W.D. Mo. 2008); aff’d 566 F.3d 784 (8th Cir. 2009); cert
denied, 130 S. Ct. 652 (2009). Petitioner was sentenced to concurrent terms of imprisonment of
180 months on each of the three counts for which he was convicted. Pulliam, 566 F.3d at 786.
Pulliam’s Petition claimed that his prior conviction for unlawful use of a weapon by exhibiting is
no longer a predicate “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §
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924(e)(2)(B), in light of the Supreme Court’s opinion in Mathis v. United States, 136 S. Ct. 2243
(2016).
Petitioner has previously filed a motion under 28 U.S.C. § 2255. See Pulliam v. United
States, No. 6-10-CV-03449 (W.D. Mo. 2010). The District Court for the Western District of
Missouri denied Petitioner’s § 2255 motion. Id. The Eighth Circuit subsequently denied
Petitioner’s application for a certificate of appealability. Pulliam v. United States, No. 12-1253
(8th Cir. 2012), No. 15-3210 (8th Cir. 2016). Additionally, Pulliam filed petitions under 28
U.S.C. § 2241 in this District on July 1, 2015, and June 10, 2016. Pulliam v. Krueger, No. 151268 (C.D. Ill. 2015); Pulliam v. Krueger, No. 16-1209 (C.D. Ill. 2016). This Court dismissed
Petitioner’s § 2241 motions for lack of jurisdiction because Pulliam’s Johnson claims were not
cognizable under § 2241 and explained that he must bring his challenge under § 2255. Id.
Pulliam’s instant § 2241 Petition is almost identical to one of his prior § 2241 petitions
wherein he sought to challenge his sentence on the grounds that his prior conviction for unlawful
use of a weapon by exhibiting was no longer a predicate “violent felony” under the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), in light of the Supreme Court’s opinion in
Johnson v. United States, 135 S. Ct. 2251 (2015). See Pulliam v. Krueger, No. 16-1209. In that
case, the Court dismissed Pulliam’s Petition because Johnson announced a new rule of
constitutional law made retroactive to cases on collateral review (Welch v. United States, 136 S.
Ct. 1257 (2016)); thus, a motion under § 2255 would not be “inadequate or ineffective to test the
legality of [Pulliam’s] detention” under 28 U.S.C. § 2255(e). See also Brown v. Caraway, 719
F.3d 583, 586 (7th Cir. 2013). Accordingly, the Court dismissed Pulliam’s Petition without
prejudice to seek permission from the court of appeals from the circuit where he was
sentenced—i.e., the Eighth Circuit—to bring a second or successive § 2255 motion.

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Pulliam’s instant Petition also challenges his sentence on the grounds that his prior
conviction for unlawful use of a weapon by exhibiting was no longer a predicate “violent felony”
under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). However, rather than asserting
a claim under Johnson, Pulliam stated that unlawful use of a weapon by exhibiting “is an
indivisible statute and in light of Descamps and Mathis does not meet the ACCA requirement for
enhancement purposes.” On December 2, 2016, this Court entered an Order dismissing Pulliam’s
Petition without prejudice to seek permission from the Court of Appeals in the Circuit where the
petitioner was sentenced to bring a second or successive § 2255 motion. ECF Doc. 4, see also
Administrative Order, In re Johnson v. United States, No. 15-1016 (C.D. Ill. Sept. 9, 2015).
Pulliam now moves to reconsider the prior Order because his Petition sought relief under Mathis
rather than Johnson.
ANALYSIS
Pulliam may only proceed under § 2241 if a motion under § 2255 would be “inadequate
or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). As the Seventh Circuit
stated in In re Davenport, “[a] federal prisoner should be permitted to seek habeas corpus only if
he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in
his conviction or sentence because the law changed after his first 2255 motion.” 147 F.3d 605,
611 (7th Cir. 1998). Relief under § 2255 is inadequate or ineffective if the following three
conditions are met: (1) a prisoner must show that he relies on a ‘statutory-interpretation’ case,
rather than a ‘constitutional’ case; (2) the prisoner must show that he relies on a retroactive
decision that he could not have invoked in his first § 2255 motion; and (3) the sentence
enhancement must have been a grave enough error to be deemed a miscarriage of justice
corrigible in a habeas corpus proceeding. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).

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Here, Pulliam’s § 2241 Petition relies on the Supreme Court’s decision in Mathis, which
held that Iowa’s burglary statute did not qualify as a predicate violent felony offense under the
ACCA because it applied to a broader range of locations than the “generic” offense of burglary
listed in § 924(e)(2)(B)(ii). 136 S. Ct. at 2250–51. Because Mathis “is a case of statutory
interpretation,” claims based on Mathis “must be brought, if at all, in a petition under 28 U.S.C.
§2241.” Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016); see also Jenkins v. United
States, No. 16-3441 (7th Cir. Sept. 20, 2016) (“Mathis is not amenable to analysis under §
2244(b) because it announced a substantive rule, not a constitutional one.”). Thus, Pulliam’s
Petition satisfies the first requirement under Brown.
Second, Pulliam’s Petition must rely on a retroactive decision that he could not have
invoked in his first § 2255 motion. “The retroactivity of a Supreme Court rule depends on
whether it is procedural or substantive.” Narvaez v. United States, 674 F.3d 621, 625 (7th Cir.
2011); Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016) (“Teague v. Lane, 489 U.S. 288,
306–10 (1989), and Bousley v. United States, 523 U.S. 614, 619–21 (1998), teach that new rules
are applied retroactively when they are substantive; procedural rules apply retroactively in much
narrower circumstances.”). A statutory rule that defines “the scope of a sentencing enhancement
that increases the maximum allowable statutory sentence on the basis of a prior conviction is
properly classified as substantive.” Welch v. United States, 604 F.3d 408, 415 (7th Cir. 2010).
Thus, Mathis—which held that Iowa’s burglary statute did not qualify as a predicate violent
felony under the ACCA because it was broader than the “generic” offense of burglary in §
924(e)(2)(B)(ii)—appears to be a substantive rule that applies retroactively. See Jenkins v. United
States, No. 16-3441 (7th Cir. Sept. 20, 2016) (“Mathis is not amenable to analysis under §
2244(b) because it announced a substantive rule, not a constitutional one.”); Dawkins v. United

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States, 829 F.3d 549, 551 (7th Cir. 2016); Montana v. Cross, 829 F.3d 775, 783–84 (7th Cir.
2016). Accordingly, Pulliam’s Petition meets the second requirement under Brown.
The third requirement under Brown provides that “the sentence enhancement have been a
grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus
proceeding.” Brown, 719 F.3d at 586. Here, Pulliam cannot meet the third requirement because
Mathis does not invalidate his predicate conviction for unlawful use of a weapon by exhibiting.
Mathis addressed the enumerated offenses under § 924(e)(2)(B)(ii)—burglary, arson, and
extortion. In contrast, Pulliam’s conviction for unlawful use of a weapon by exhibiting qualifies
as a violent felony under the first romanette, because it “has as an element the use, attempted use,
or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). Under
Missouri law, a person commits the crime of unlawful use of a weapon by exhibiting if he
knowingly “[e]xhibits, in the presence of one or more persons, any weapon readily capable of
lethal use in an angry or threatening manner.” Mo. Rev. Stat. § 571.030.1(4); United States v.
Pulliam, 566 F.3d 784, 788 (8th Cir. 2009). Thus, the Eighth Circuit held in 2009, and reaffirmed
in a decision after Mathis was decided, that “Missouri’s crime of unlawful use of a weapon meets
the statutory definition of violent felony in § 924(e)(2)(B)(i), because it involves the ‘use,
attempted use, or threatened use of physical force against the person of another.’” Pulliam, 556
F.3d at 784; Robinson v. United States, 2016 WL 4502530 (8th Cir. Aug. 29, 2016). Since Mathis
does not invalidate the use of Pulliam’s prior conviction for unlawful use of a weapon by
exhibiting under the elements clause, Pulliam cannot meet Brown’s third requirement for
proceeding under § 2241.
In sum, because Pulliam’s § 2241 Petition relied on Mathis, which announced a new
substantive rule, rather than a new rule of constitutional law, § 2241 was the proper vehicle for

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him to attack his sentence enhancement for his prior conviction of unlawful use of a weapon by
exhibiting. Accordingly, the Court erred in dismissing his Petition without prejudice to seek
permission from the Eighth Circuit Court of Appeal to bring a second or successive § 2255
motion. However, as discussed above, Pulliam’s Petition must be denied because his prior
conviction was not invalidated by Mathis. Accordingly, the Court grants Pulliam’s motion to
reconsider, vacates the original Judgment, and directs the Clerk to enter an Amended Judgment
denying his Petition.
CONCLUSION
For the reasons stated above, Pulliam’s Motion [6] to Reconsider is GRANTED,
the Judgment is VACATED, and the Clerk is DIRECTED to enter an Amended Judgment
DENYING the Petition.

This matter is now terminated.

Signed on this 10th day of January, 2017.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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