Rhodes v. Warden
Filing
34
ORDER GRANTING Petition for Writ of Habeas Corpus (Doc. 1 ). The career-offender-enhanced sentence of 260 months for Counts 1 and 3 imposed upon Jimmy Eugene Rhodes by the Western District of Oklahoma in Case No. 01-cr-0202-R-1 is VACATED. Rhodes shall be resentenced forthwith by the Western District of Oklahoma. Signed by Judge Staci M. Yandle on 11/5/2019. (beb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY EUGENE RHODES, #15025-064,
Petitioner,
vs.
WARDEN, USP-MARION,
Respondent.
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Case No. 17-cv-0562-SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Petitioner Jimmy Eugene Rhodes, an inmate in the Bureau of Prisons, filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241 on May 30, 2017. (Doc. 1). Following a jury trial
in the Western District of Oklahoma in 2002, Rhodes was convicted of two counts of possession
of a firearm by a felon (Counts 1 and 3), 1 possession of methamphetamine (Count 2), 2 possession
of a stolen firearm (Count 4), 3 and maintaining a place for the manufacture, distribution, or use of
a controlled substance (Count 5). 4 United States v. Rhodes, No. 01-cr-0202-R-1, Doc. 56 (W.D.
Okla. April 10, 2002), Doc. 136, pp. 1–2. Rhodes’ statutory sentence for Counts 1 and 3 was
enhanced to a 15-year mandatory minimum pursuant to the Armed Career Criminal Act (the
“ACCA”), 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(B)(ii) (1998) 5 based in part on two prior
Oklahoma felony convictions: 1986 and 1990 convictions for burglary in the second degree
pursuant to OKLA. STAT. tit. 21, § 1435 (1969). Without the ACCA enhancement, Rhodes would
1
18 U.S.C. § 922(g)(1) (1998).
21 U.S.C. § 844 (1996).
3
18 U.S.C. § 922(j) (1998).
4
21 U.S.C. § 856(a)(1) (2000).
5
18 U.S.C. § 922(e)(1) sets a 15-year mandatory minimum sentence for “a person who violates section 922(g) of this
title and has three previous convictions . . . for a violent felony or a serious drug offense[.]” Section 924(e)(2)(B)
defines the term “violent felony,” to include the enumerated crime of burglary.
2
1
have faced a statutory maximum penalty of 10 years on the felon in possession counts. 18 U.S.C.
§ 924(a)(2).
Rhodes now invokes Mathis v. United States, – U.S. –, 136 S. Ct. 2243 (2016) to challenge
his sentence enhancement based on the second-degree burglary convictions and contends he is
entitled to be resentenced without the enhancement. Specifically, Rhodes argues that the
Oklahoma statute of conviction is broader than the federal definition of burglary and criminalizes
more conduct than the “generic” definition of burglary as defined by the Supreme Court because
it criminalizes breaking and entering of railroad cars, automobiles, trucks, trailers, vessels, and
vending machines. (Doc. 1, pp. 6–8). Respondent opposes issuance of the Writ, arguing that
Rhodes cannot satisfy the requirements of § 2255(e)’s savings clause because his Mathis theory
was not foreclosed by binding precedent before Mathis was decided, and Mathis does not apply
retroactively to cases on collateral review. (Doc. 28, pp. 5–7). Rhodes replied to Respondent’s
response. (Doc. 30). This matter is now ripe for resolution. For the reasons discussed below,
Rhodes’ § 2241 Petition (Doc. 1) will be GRANTED.
RELEVANT FACTS AND PROCEDURAL HISTORY
Following a jury trial, Rhodes was found guilty on five counts, including two counts of
possessing firearms after a felony conviction in violation of 18 U.S.C. § 922(g)(1), one count of
possessing methamphetamine in violation of 21 U.S.C. § 844(a), one count of possessing firearms
he knew to be stolen in violation of 18 U.S.C. § 922(j), and maintaining a house where
methamphetamine was manufactured or distributed in violation of 21 U.S.C. § 856(a)(1). United
States v. Rhodes, No. 01-cr-0202-R-1, Doc. 56 (W.D. Okla. April 10, 2002); see also Doc. 71;
Doc. 107, pp. 1–2. 6 The Presentence Report (“PSR”) provided to the sentencing court listed three
6
Neither party has provided the Court with a copy of the jury verdict, PSR, statement of reasons, or judgment from
Rhodes’ underlying criminal case. These documents were all filed under seal and inaccessible to the Court. See
2
prior Oklahoma felony convictions that qualified Rhodes for an enhanced mandatory minimum
sentence pursuant to the ACCA: a 1984 conviction for shooting with intent to kill; and 1986 and
1990 convictions for burglary in the second degree. Id. at Doc. 63-1, ¶¶ 52, 59–61; Doc. 128, pp.
2–3; Doc. 132, pp. 2–3.
The sentencing court determined Rhodes’ Guideline Range to be 235 to 293 months
imprisonment, based on a total offense level of 33 and a criminal history category of VI. Id. at
Doc. 63-1; Doc. 124; Doc. 132, p. 3.
Rhodes was ultimately sentenced to 260 months
imprisonment on his felon in possession counts as a result of the ACCA enhancement predicated
on his prior Oklahoma felony convictions. Rhodes, No. 01-cr-0202-R-1, Doc. 72 (W.D. Okla.
Aug. 22, 2002); see also Doc. 136, p. 2. The sentencing court also imposed sentences between 36
and 240 months on the other three counts, all to be served concurrently to his 260-month sentence
for the felon in possession counts. Id. at Docs. 71, 72. Rhodes has attacked his conviction and
sentence in a variety of ways since his sentencing.
Direct Appeal and First Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2255
On direct appeal, Rhodes argued the district court erred in several of its pre-trial and
evidentiary rulings, and also alleged that 18 U.S.C. § 922(g)(1) violated the Second Amendment.
United States v. Rhodes, 62 F. App’x 869, 870–72 (2003). At that time, Rhodes did not appeal the
Rhodes, No. 01-cr-0202-R-1 at Doc. 56 (jury verdict), Doc. 63-1 (PSR), Doc. 124 (statement of reasons), and Doc. 72
(judgment). However, there are no factual disputes between the parties relating to the contents of these documents,
and the Court was able to corroborate and confirm the relevant portions of these documents after reviewing the docket
entries that were publicly available. See, e.g., Rhodes, No. 01-cr-0202-R-1, Doc. 71 (minutes of Rhodes’ sentencing
hearing confirming his five counts of conviction and their respective sentences); id. at Doc. 107, p. 1 (sentencing
court’s restatement of facts in order denying Rhodes’ initial § 2255 motion); id. at Doc. 128, pp. 2–3 (Government’s
responsive pleading to Rhodes’ second successive § 2255 motion summarizing PSR contents and findings with
multiple specific citations to the PSR’s text); id. at Doc. 132, pp. 2–3 (Rhodes’ reply in support of second successive
§ 2255 petition also summarizing PSR and statement of reasons with no apparent discrepancies with the Government’s
recitation of facts); id. at Doc. 136, pp. 1–2 (sentencing court’s restatement of facts in order denying Rhodes’ second
successive § 2255 motion). All further citations to these sealed documents are accompanied by citations to one or
more of these sources.
3
sentencing court’s use of his prior Oklahoma burglary convictions to enhance his sentence under
the ACCA. Id. The Tenth Circuit Court of Appeals upheld Rhodes’ convictions in their entirety.
Id. at 876.
Rhodes then filed a motion under 28 U.S.C. § 2255 in May of 2004. Rhodes, No. 01-cr0202-R-1, Doc. 90 (W.D. Okla. May 17, 2004). At that time, he asserted that he was denied
effective assistance of counsel at trial due to an irreconcilable conflict with his attorney. Id. at
Doc. 107, p. 1. The motion was denied in all respects (Id. at p. 6) and the Tenth Circuit Court of
Appeals denied Rhodes’ request for a certificate of appealability. Id. at Doc. 115, pp. 11–12.
Subsequent Applications for Authorization to File a Second or Successive Motion
Beginning in 2010, Rhodes filed applications with the Tenth Circuit for authorization to
file a second or successive motion for collateral review under § 2255. The first application
challenged his classification as an armed career criminal under the ACCA pursuant to Curtis
Johnson v. United States, 559 U.S. 133 (2010) and Begay v. United States, 553 U.S. 137 (2008).
The Tenth Circuit denied Rhodes’ application without reaching the merits of his argument, finding
that neither Johnson nor Begay were new rules of constitutional law made retroactive to cases on
collateral review by the Supreme Court. Rhodes, No. 01-cr-0202-R-1, Doc. 117.
Rhodes filed another application for authorization to file a successive § 2255 motion in
May of 2016. Id. at Doc. 126. He argued that Samuel Johnson v. United States, 576 U.S. –, 135
S. Ct. 2551 (2015) required the invalidation of his sentence enhancement based on his Oklahoma
burglary convictions. Id. at pp. 1–2. Rhodes invoked Mathis v. United States, – U.S. –, 136 S. Ct.
2243 (2016) in subsequent pleadings relating to this application, arguing that the Oklahoma
second-degree burglary statute defines burglary more broadly than generic burglary under the
ACCA. Id. at Docs. 128, 132. While the Tenth Circuit did authorize Rhodes’ application to file
4
a successive § 2255 action, the district court ultimately denied Rhodes’ motion, finding “the record
does not support [Rhodes’] contention” that he was properly raising a claim under Johnson, and
that his Mathis claim also failed due to Tenth Circuit precedent stating that Mathis did not apply
retroactively in the context of an attempt to bring a habeas challenge under § 2255(f)(3). Id. at
Doc. 136, pp. 3–5. The Tenth Circuit affirmed the district court’s denial of Rhodes’ § 2255 motion
on appeal, concluding “there would have been little dispute at the time of [Rhodes’ sentencing]
that [his] burglary convictions constituted enumerated offenses [under the ACCA],” while
specifically “express[ing] no opinion as to whether [prior Tenth Circuit cases analyzing the
ACCA’s enumerated clause] remain good law following [Mathis].” Rhodes, No. 01-cr-0202-R-1,
at Doc. 147, pp. 3–5; (Doc. 14-1, pp. 3–5 in instant case). Rhodes’ Petition for a Writ of Certiorari
was denied by the Supreme Court.
Rhodes’ most recent application for permission to file a subsequent § 2255 motion was
filed in September 2019. The application was premised on United States v. Davis, 588 U.S. –, No.
18-431 (2019) and reiterated Rhodes’ Mathis objections to his sentence. Rhodes, No. 01-cr-0202R-1, Doc. 152-1, p. 4. The Tenth Circuit denied the application on October 9, 2019, finding that
Rhodes did not make a prima facie showing that his proposed successive § 2255 motion relied on
the new rule announced in Davis as he was not convicted under 18 U.S.C. § 924(c). Id. at Doc.
156, p. 4, nor did he show that Mathis announced a new rule of constitutional law so as to satisfy
28 U.S.C. § 2255(h)(2). Id. at Doc. 156, p. 5.
APPLICABLE LEGAL STANDARDS
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not be used to
raise claims of legal error in conviction or sentencing but are instead limited to challenges
regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir.
5
1998). Thus, aside from the direct appeal process, a prisoner who has been convicted in federal
court is generally limited to challenging his conviction and sentence by bringing a motion pursuant
to 28 U.S.C. § 2255 in the court which sentenced him. See, Kramer v. Olson, 347 F.3d 214, 217
(7th Cir. 2003). A prisoner is also generally limited to only one challenge of his conviction and
sentence under § 2255. He or she may not file a “second or successive” § 2255 motion unless a
panel of the appropriate court of appeals certifies that such motion contains either 1) newly
discovered evidence “sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense,” or 2) “a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h).
However, under very limited circumstances, a prisoner may challenge his federal
conviction or sentence under § 2241. Specifically, 28 U.S.C. § 2255(e) contains a “savings clause”
which authorizes a federal prisoner to file a § 2241 petition where the remedy under § 2255 is
“inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). See United
States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The Seventh Circuit construed the savings
clause in In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998): “A procedure for postconviction
relief can be fairly termed inadequate when it is so configured as to deny a convicted defendant
any opportunity for judicial rectification of so fundamental a defect in his conviction as having
been imprisoned for a nonexistent offense.” 7
7
The Seventh Circuit’s interpretation of § 2255(e)’s savings clause is in line with a majority of the Circuit Courts of
Appeals’ jurisprudence on this issue. See, e.g., In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); Triestman v. United
States, 124 F.3d 361, 377 (2d Cir. 1997); In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000); Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001); Martin v. Perez, 319 F.3d 799 (6th Cir. 2003); Ivy v. Pontesso, 328 F.3d
1057, 1059–60 (9th Cir. 2003); Abdullah v. Hedrick, 392 F.3d 957, 960–63 (8th Cir. 2004); see also Wright v.
Spaulding, – F.3d –, 2019 WL 4493487, at *3 (6th Cir. Sept. 19, 2019) (collecting cases).
However, Rhodes was convicted and sentenced in the Tenth Circuit, one of two jurisdictions that have come
to the opposite conclusion. See Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011) (holding petitioner may not
use § 2255(e)’s savings clause to bring § 2241 petition where the legality of his detention could have been tested in
6
A petitioner must meet three conditions in order to trigger the savings clause. First, he
must show that he relies on a new statutory interpretation case rather than a constitutional case.
Secondly, he must show that he relies on a decision that he could not have invoked in his first
§ 2255 motion and that case must apply retroactively. Lastly, he must demonstrate that there has
been a fundamental defect in his conviction or sentence that is grave enough to be deemed a
miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See also Chazen v.
Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012).
“There must be some kind of structural problem with § 2255 before § 2241 becomes available. In
other words, something more than a lack of success with a § 2255 motion must exist before the
savings clause is satisfied.” See Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
ANALYSIS
In Mathis v. United States, –– U.S. ––, 136 S. Ct. 2243 (2016), the Supreme Court
addressed the question of whether an Iowa burglary conviction was properly used to enhance a
federal sentence under the Armed Career Criminal Act (“ACCA”) and held that only where the
elements of the predicate offense match or are narrower than the elements of the “generic” offense
(in Mathis’ case, generic burglary) may the prior conviction be used as the basis for enhancing a
federal sentence. Mathis, 136 S. Ct. at 2247. The Iowa statute in question identified several
alternative locations where the burglary may take place, including a “building, structure, . . . land,
water, or air vehicle.” Id. at 2250. The Court noted that the statute was “indivisible,” describing
a single crime with several possible modes, or “means,” of commission, and found that because
the generic offense of burglary is limited to unlawful entry into a “building or other structure” with
an initial § 2255 motion, even where his legal theory was foreclosed by binding precedent); McCarthan v. Dir. Of
Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1099–1100 (11th Cir. 2017) (en banc) (federal prisoner may not use
§ 2255(e)’s savings clause to bring § 2241 habeas petition if he was free to bring such a claim in his initial § 2255
motion).
7
intent to commit a crime, the Iowa statute was overbroad. Mathis, 136 S. Ct. at 2248, 2250
(quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). As such, the Court concluded that
the ACCA enhancement based on the Iowa conviction could not stand, even though the records in
Mathis’ Iowa case contained facts showing that his actual offense conduct matched the elements
of generic burglary.
Mathis resolved a split among the circuits as to under what circumstances and for what
purpose a court may consult state charging or sentencing documents (known as the “modified
categorical approach”) to determine whether a previous conviction, under an alternatively-phrased
statute, may qualify as a career-criminal predicate offense. See Chazen, 938 F.3d at 857-59. See
also Shepard v. United States, 544 U.S. 13, 26 (2005) (limiting the case documents which may be
consulted by a court when comparing non-generic statute of conviction to generic offense). Mathis
clarified that only if a statute is “divisible” – that is, it sets forth one or more elements of the offense
in the alternative, each of which amounts to a distinct offense – may the modified categorical
analysis be used to determine which of the alternatives formed the basis of the conviction in
question, and whether the elements of that crime match the elements of the generic offense. Thus,
if an “indivisible” statute lists alternative factual means to satisfy a single element, and if the
alternative means include conduct that sweeps more broadly than the generic crime, then a
conviction under the statute may not be used as a career-offender predicate offense, even if the
particular defendant’s conduct fell within the scope of the generic offense. Mathis, 136 S. Ct. at
2252 (sentencing court “cannot go beyond identifying the crime of conviction to explore the
manner in which the defendant committed that offense”); Van Cannon v. United States, 890 F.3d
656, 663 (7th Cir. 2018) (“the modified categorical approach has no role to play” if the statute is
indivisible).
8
Application of the 28 U.S.C. § 2255(e) Savings Clause
A claim brought pursuant to Mathis v. United States, 136 S. Ct. 2243 (2016) satisfies the
first condition implicating the savings clause as Mathis is a statutory-interpretation case. See Holt
v. United States, 843 F.3d 720, 722 (7th Cir. 2016); Dawkins v. United States, 829 F.3d 549, 550–
51 (7th Cir. 2016). As to the third condition, “a defendant sentenced in error as an armed career
criminal satisfies the ‘miscarriage of justice’ requirement.” Chazen v. Marske, 938 F.3d 851, 856
(7th Cir. 2019) (citing Light v. Caraway, 761 F.3d 809, 813 (7th Cir. 2014)). Thus, Rhodes has
satisfied the first and third elements of the savings clause.
Previous Availability of Petitioner’s Mathis Claim
In order to bring his claim within the scope of the second element of the savings clause,
Rhodes must first establish that he could not have previously raised the claim he now presents. In
two recent opinions, the Seventh Circuit articulated the test to be applied in evaluating the “prior
unavailability” component. In Beason v. Marske, the court held that a § 2241 petitioner must show
it “would have been futile” to raise his argument in his § 2255 motion because the “law was
squarely against him.” Beason, 926 F.3d 932, 936 (7th Cir. June 24, 2019) (quoting Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015)). In Chazen v. Marske, without stating which of its
various articulations of the test should control going forward, the court concluded that the
petitioner satisfied the “prior unavailability” condition because his claim had clearly been
foreclosed by the law in his circuit of conviction at the time he might have raised it in a § 2255
motion. Chazen, 938 F.3d at 862-63. See also Light, 761 F.3d at 813 (noting that the circuit had
“applied two different tests” as to prior unavailability under Davenport).
Here, Respondent simply asserts without further explanation that Rhodes’ argument under
Mathis was not made pursuant to a new rule of statutory interpretation. (Doc. 28, pp. 5-6).
9
Respondent does not, however, specifically address whether Rhodes’ Mathis claim was
unavailable at the time he filed his first § 2255 motion. (Doc. 28, pp. 1–8). Seventh Circuit
precedent on this issue focuses on whether the law in the circuit of conviction would have been
against the habeas petitioner. As such, the relevant question is whether Rhodes could have raised
a Mathis-like argument in the Tenth Circuit in 2004.
Rhodes contends that such an argument was not reasonably available to him in the Tenth
Circuit at the time of his direct appeal or his § 2255 motion (Doc. 1, pp. 4–5) and cites to United
States v. Hamilton, 889 F.3d 688 (10th Cir. 2018) in support of his argument. (Doc. 25, p. 2; Doc.
30, p. 1). In Hamilton, the Tenth Circuit analyzed the statute under which Rhodes was convicted,
contrasting its prior precedents with the Supreme Court’s most recent guidance in Mathis.
Hamilton, 889 F.3d at 692–93. It noted that before Mathis, it had approved the practice of applying
the modified categorical approach to statutes without first analyzing whether the statute was
divisible or indivisible. See, e.g., United States v. Green, 55 F.3d 1513, 1515–17 (10th Cir. 1995).
However, in Hamilton, the Tenth Circuit recognized that “[the modified categorical approach] is
permissible only if the statute of conviction is divisible.” Hamilton, 889 F.3d at 692. After
consulting Oklahoma case law, statutory text, and the defendant’s record of conviction, the Tenth
Circuit concluded that it “must treat the Oklahoma [second-degree burglary] statute as indivisible,”
meaning it could not avail itself of the modified categorical approach. Id. at 693–99. It then
concluded that a defendant’s conviction under the Oklahoma second-degree burglary statute does
not fit the ACCA’s enumerated clause because such a conviction “could have been based on
conduct falling outside the generic definition of burglary.” Id. at p. 699.
As is clear from Hamilton, Green, and cases decided in the Tenth Circuit before 2018, this
Court concludes that it would have been futile for Rhodes to have raised the challenges he sets
10
forth herein in the Tenth Circuit at the time of his direct appeal and § 2255 motion. This conclusion
is supported by the Tenth Circuit’s order affirming the denial of Rhodes’ successive § 2255 motion
in which the court noted that at the time Rhodes was sentenced, it “had repeatedly held that
Oklahoma second degree burglary qualified as an enumerated offense [for ACCA enhancement
purposes] if underlying documents indicated that the defendant burgled a building.” United States
v. Rhodes, No. 17-6096 (10th Cir. Jan. 26, 2018) (Doc. 14-1 herein). 8
Retroactive Application of Mathis on Collateral Review
The primary focus of Respondent’s argument as to the second Davenport element is that
“Mathis did not announce a new rule of constitutional law, 9 and the Tenth Circuit has specifically
held that it does not apply retroactively.” (Doc. 28, pp. 6–7). While Respondent concedes that the
Tenth Circuit’s language was “not directly decisive in [that] case,” he also points to the language
of Mathis itself to argue that Mathis is not a “new” rule of statutory interpretation. Id.
This argument has been successful in this district in the past. District judges, noting the Supreme
Court’s statement in Mathis that it was applying the analysis first articulated in Taylor v. United
States, concluded that Mathis did not constitute a new rule of statutory construction. See, e.g.,
Blue v. Werlich, Case No. 17-cv-1215-DRH, 2018 WL 6102844 (S.D. Ill. Nov. 21, 2018) (§ 2241
petition) (finding that because the reasoning in Mathis flowed from the precedents of Taylor and
Descamps v. United States, 570 U.S. 254 (2013), Petitioner could have raised a Mathis-like
statutory interpretation argument in a timely-filed motion under 28 U.S.C. § 2255); Arnold v.
8
Rhodes’ Johnson claim raised in the successive § 2255 motion failed because his ACCA enhancement was not based
on the invalidated residual clause. As to Mathis, the Tenth Circuit “express[ed] no opinion” on whether its prior cases
remained good law following that decision. United States v. Rhodes, No. 17-6096 (10th Cir. Jan. 26, 2018) (Doc. 141 herein, p. 4 n.2).
9
The Western District of Oklahoma’s conclusion refers to 28 U.S.C. 2255(h)(2), which governs the authorization for
a second/successive § 2255 motion if it is based on a new rule of constitutional law made retroactive by the Supreme
Court. As Mathis is a case of statutory interpretation, it does not meet that test, but may potentially be raised in a
§ 2241 petition asserting a savings clause claim under § 2255(e).
11
United States, No. 15-cv-881-DRH, 2018 WL 2087972 (S.D. Ill. May 4, 2018) (§ 2255 motion);
Hanson v. United States, No. 16-cv-428-JPG, 2017 WL 3267952 (S.D. Ill. Aug. 1, 2017) (§ 2255
motion), appeal pending, No. 18-1149.
However, the Seventh Circuit has since spoken directly on this issue, affirming the grant
of habeas relief to a § 2241 petitioner based on his Mathis claim and confirming the retroactive
applicability of Mathis in line with its previous statements in Holt and Dawkins. Chazen v. Markse,
938 F.3d 851 (7th Cir. Sept. 9, 2019). After discussing its various articulations of the second
savings-clause requirement in previous opinions, the court concluded that Mathis “fits the bill” as
a basis for relief in § 2241, as an “intervening case of statutory interpretation [which] opens the
door to a previously foreclosed claim.” Chazen, 938 F.3d at 861-62. Thus, “Mathis is ‘new’ as a
functional and practical matter for federal inmates seeking relief from a mandatory minimum
sentence under the Act.” Id. at 862. 10
In light of Chazen and the Seventh Circuit’s discussion of Mathis in Van Cannon, the Court
concludes that Mathis set forth a new substantive rule of statutory construction that should have
retroactive application in a § 2241 petition. See Van Cannon v. United States, 890 F.3d at 663;
Holt v. United States, 843 F.3d at 721–22 (“substantive decisions such as Mathis presumptively
apply retroactively on collateral review”). Accordingly, Rhodes’ claim satisfies the second prong
of the Davenport test. Because Rhodes has satisfied all three prongs of § 2255(e)’s savings clause,
the Court will address the merits of his Mathis claim.
10
The Chazen court stopped short, however, of reaching a blanket conclusion that Mathis would afford relief in all
circumstances to a § 2241 petitioner: “In these circumstances, where the government has conceded that Mathis is
retroactive and Chazen was so clearly foreclosed by the law of his circuit of conviction at the time of his original
§ 2255 petition, we conclude that Chazen has done enough to satisfy the savings clause requirements.” Chazen, 938
F.3d at 863.
12
Petitioner’s Oklahoma Second-Degree Burglary Conviction
Does Not Categorically Match the Generic Definition of Burglary
Rhodes challenges the classification of his 1986 and 1990 Oklahoma second-degree
burglary convictions as violent felonies pursuant to the enumerated clause of the ACCA. 18 U.S.C.
§ 924(e)(2)(B)(ii) (“[T]he term ‘violent felony’ means any crime punishable by imprisonment for
a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]”)
(emphasis added). While not raised by the parties, a review of the Seventh Circuit’s recent decision
in Chazen v. Marske identifies an issue for the Court to consider as an initial matter: which Circuit
Court of Appeals’ substantive law should apply to the merits of Rhodes’ Mathis claim – the
Seventh Circuit, where Rhodes is currently incarcerated, or the Tenth Circuit, where Rhodes was
convicted and sentenced? As the concurrence in Chazen notes, the Seventh Circuit has not given
explicit guidance on this particular issue. Chazen, 938 F.3d at 864-66 (Barrett, J., concurring). In
Chazen, the government conceded that the substantive law of the Seventh Circuit applied to the
merits of the petitioner’s Mathis claim, and the majority opinion accepted that concession at face
value without further discussion. Id. at 860 (“What is less clear, however, is whether, in evaluating
the merits of Chazen’s petition, we should apply our own precedent or the precedent of the circuit
of conviction . . . [w]e need not decide this issue here because [of the government’s concession]
that the law of this circuit governs the merits of Chazen’s claim.”).
In the absence of such a concession by the parties, several district courts in this circuit and
others have concluded that the law of the circuit of conviction should be applied because to do
otherwise, would create “far more arbitrary” results by “bas[ing] the choice of law decision on the
fortuitous placement of a prisoner by the Bureau of Prisons, not the more rational factor of the
13
place of conviction.” Hernandez v. Gilkey, 242 F. Supp. 2d 549, 554 (S.D. Ill. 2001). 11 That said,
any potential uncertainty as to whether Seventh Circuit or Tenth Circuit substantive law should
apply to Rhodes’ Mathis claim will not change the outcome in this case; Rhodes’ Oklahoma
second-degree burglary convictions are improper predicates for his ACCA enhancement under the
precedents of either circuit. 12
At the time of both convictions, the Oklahoma second-degree burglary statute provided:
Every person who breaks and enters any building or any part of any building, room,
booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or
erection, in which any property is kept, or breaks into or forcibly opens, any coinoperated or vending machine or device with intent to steal any property therein or
to commit any felony, is guilty of burglary in the second degree. OKLA. STAT. tit.
21, § 1435 (1969).
11
See also Cano v. Warden USP–Terre Haute, No. 2:17-cv-441, 2018 WL 3389746 (S.D. Ind. July 12, 2018); Roberts
v. Watson, No. 16-cv-541, 2017 WL 6375812 (W.D. Wis. Dec. 12, 2017); accord Burgess v. Williams, No. 4:18-cv2643, 2019 WL 2641902 (N.D. Ohio June 27, 2019); Eames v. Jones, 793 F. Supp. 2d 747, 749 (E.D.N.C. 2011).
12
Because there is no discernible conflict between the Seventh Circuit’s and Tenth Circuit’s substantive law here, the
Court was faced with one less “staggering[ly]” complex issue that § 2241 petitions can force courts to “untangle.”
Chazen, 938 F.3d at 863, 866 (Barrett, J., concurring). However, there is perhaps an even more fundamental question
to address in a case like this—should the Tenth Circuit’s jurisprudence regarding the savings clause itself, not just
the substantive law of the underlying conviction, presumptively apply to Rhodes’ Petition? Recall that the Tenth
Circuit takes the minority view that a petitioner may not use § 2255(e)’s savings clause as a vehicle for a § 2241
habeas petition if he could have raised the same argument in his initial § 2255 motion, even if such an argument was
foreclosed by binding circuit precedent at the time. See supra, p. 6, at n.7; Prost, 636 at 580 (“The fact that § 2255
bars Mr. Prost from bringing his statutory interpretation argument now, in a second § 2255 motion almost a decade
after his conviction, doesn’t mean the § 2255 remedial process was ineffective or inadequate to test his argument. It
just means he waited too long to raise it.”). Simply put, if Rhodes were housed in a Bureau of Prisons facility within
the Tenth Circuit’s borders, his Petition would have been summarily denied based on Prost. But, because he was
incarcerated at the USP-Marion facility in Illinois when he filed this action, his Petition may be considered under the
savings clause jurisprudence of this Circuit.
This result “base[s] the choice of law decision [as to the availability of the savings clause] on the fortuitous
placement of a prisoner by the Bureau of Prisons, not the more rational factor of the place of conviction.” Chazen, 938
F.3d at 865 (Barrett, J., concurring) (quoting Hernandez v. Gilkey, 242 F. Supp. 2d 549, 554 (S.D. Ill. 2001)).
However, the conflict involves the differences between the circuits’ savings clause jurisprudence and not the
substantive jurisprudence on the underlying criminal issues, such as a given circuit’s interpretation of the ACCA. The
Seventh Circuit has at least recognized, though not decided, the latter situation. Id. at *7 (“What is less clear, however,
is whether . . . we should apply our own precedent or the precedent of the circuit of conviction . . . . We need not
decide this issue here[.]”). And while the Seventh Circuit has not explicitly discussed whether such choice of law
issues apply to the law of the savings clause itself where a petitioner was convicted and sentenced in another district,
past discussions in those scenarios have been entirely in the context of Seventh Circuit precedent with no citation to
extra-circuit law on the matter. See Brown, 719 F.3d at 586; Light, 761 F.3d at 812–14; Chazen, 938 F.3d at 855-56.
That, combined with the parties’ silence on the issue, obviates the need for the Court to delve further into this question.
14
Citing Mathis, Rhodes argues that the statute criminalizes a broad swath of conduct, including the
burglary of automobiles, trucks, trailers, vessels, and even vending machines. (Doc. 1). He further
argues that therefore, the Oklahoma statute’s locational element is broader than the “generic
definition” of burglary as set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575,
598 (1990). 13
As long ago as 1995, the Tenth Circuit recognized that on its face, this statute clearly
criminalized more conduct than the generic definition of burglary. United States v. Green, 55 F.3d
1513, 1516 (10th Cir. 1995) (“Because the Oklahoma statute defines burglary in terms broader
than the Taylor definition [of generic burglary], Defendant’s conviction cannot as a categorical
matter provide a basis for enhancement under the ACCA.”). And, following the Supreme Court’s
decision in Mathis, the Tenth Circuit acknowledged unequivocally that it must now determine
whether OKLA. STAT. tit. 21, § 1435 is divisible or indivisible prior to applying the modified
categorical approach to save the statute from its overbroad language and observed that “[n]either
Oklahoma case law, the text of the Oklahoma statute, nor the record of conviction establishes with
certainty whether the locational alternatives constitute elements or means.” United States v.
Hamilton, 889 F.3d 688, 692–93, 698-699 (10th Cir. 2018). In light of that uncertainty, the
Hamilton panel concluded that it “must treat the Oklahoma statute as indivisible,” and its
indivisibility combined with the plain overbreadth of its text meant that convictions pursuant to
that statute could not be used as ACCA predicate offenses. Id. at 699.
Thus, under the substantive law of the Tenth Circuit, this Court concludes that Rhodes’
Mathis claim succeeds on the merits and his 1986 and 1990 Oklahoma second-degree burglary
13
The Taylor court defined the generic meaning of burglary to be “an unlawful or unprivileged entry into, or remaining
in, a building or other structure, with intent to commit a crime.” Id. This is the generic definition of burglary analyzed
in Mathis. 136 S. Ct. at 2248.
15
convictions may not be considered as proper predicates for his ACCA sentence enhancement.
Absent those convictions, Rhodes no longer has the requisite three predicate “violent felony”
offenses to support the application of the 15-year mandatory minimum sentence for the felon in
possession convictions (Counts 1 and 3) and the 10-year maximum sentence in 18 U.S.C.
§ 924(a)(2) would apply to those counts. Accordingly, Rhodes is entitled to be resentenced free
of the armed career criminal designation that was incorrectly imposed. 14
CONCLUSION
Petitioner Jimmy Rhodes’ Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241
(Doc. 1) is GRANTED and the following relief is ORDERED:
1. The career-offender-enhanced sentence of 260 months for Counts 1 and 3 imposed
upon Jimmy Eugene Rhodes by the Western District of Oklahoma in Case No. 01cr-0202-R-1 is VACATED.
2. Rhodes shall be resentenced forthwith by the Western District of Oklahoma.
3. The Clerk of Court is DIRECTED to enter judgment in favor of Rhodes.
4. The Clerk of Court is DIRECTED to furnish certified copies of this Order and the
Judgment entered in this case to the Bureau of Prisons, the United States Attorney
for the Western District of Oklahoma, and the Clerk of the District court for the
Western District of Oklahoma for filing in Case No. 01-cr-0202-R-1.
IT IS SO ORDERED.
DATED: November 5, 2019
s/ Staci M. Yandle
_
STACI M. YANDLE
United States District Judge
14
Respondent reserved the right to oppose Rhodes’ “Affidavit-Declaration in Support of New Sentencing” (Doc. 27),
which asserts that he is entitled to immediate release if he is granted relief pursuant to Mathis. (Doc. 28, p. 5 n.2).
This Court does not directly address the assertions raised by Rhodes in that document; instead, Rhodes’ arguments
are more appropriately raised in the Western District of Oklahoma in the context of the resentencing hearing ordered
herein.
16
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