WESTOVER v. KRUEGER
Filing
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Order Denying Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Directing Entry of Final Judgment - Petitioner Michael B. Westover seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Westover asserts that he is no longer an armed career criminal under the Armed Career Criminal Act ("ACCA") because his two prior Wyoming burglary convictions do not qualify as violent felonies in view of Mathis v. United States, 136 S. Ct. 2243 (2016). His petition is denied. The dismissal of this action is with prejudice. Judgment consistent with this Order shall now issue. (See Entry.) Signed by Judge Jane Magnus-Stinson on 11/13/2018.(RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
MICHAEL BRADLEY WESTOVER,
Petitioner,
v.
J. E. KRUEGER Warden,
Respondent.
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No. 2:18-cv-00158-JMS-DLP
Order Denying Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
and Directing Entry of Final Judgment
Petitioner Michael B. Westover seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Mr. Westover asserts that he is no longer an armed career criminal under the Armed Career
Criminal Act (“ACCA”) because his two prior Wyoming burglary convictions do not qualify as
violent felonies in view of Mathis v. United States, 136 S. Ct. 2243 (2016). His petition is denied.
I.
Standard
To succeed on a motion for relief under § 2241, a motion pursuant to 28 U.S.C. § 2255
must be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
Section 2255 is inadequate or ineffective if the following three requirements are met: “(1) the
petitioner must rely on a case of statutory interpretation (because invoking such a case cannot
secure authorization for a second § 2255 motion); (2) the new rule must be previously unavailable
and apply retroactively; and (3) the error asserted must be grave enough to be deemed a miscarriage
of justice, such as the conviction of an innocent defendant.” Davis v. Cross, 863 F.3d 962, 964
(7th Cir. 2017). “The petitioner bears the burden of coming forward with evidence affirmatively
showing the inadequacy or ineffectiveness of the § 2255 remedy.” Smith v. Warden, FCC
Coleman–Low, 503 Fed. Appx. 763, 765 (11th Cir. 2013) (citation omitted).
II.
Legal Background
The ACCA prescribes a 15–year mandatory minimum sentence if a defendant is convicted
of being a felon in possession of a firearm following three prior convictions for a “violent felony”
or “serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as “any
crime punishable by imprisonment for a term exceeding one year” that 1) “has as an element the
use, attempted use or threatened use of physical force against the person of another;” 2) “is
burglary, arson, or extortion, [or] involves the use of explosives;” or 3) “otherwise involves
conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B). These
three “clauses” are respectively known as 1) the elements clause, 2) the enumerated clause, and 3)
the residual clause. In 2015, the Supreme Court in Johnson held that the residual clause of the
ACCA was unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). In
2016, the Supreme Court discussed applying a modified categorical approach when analyzing
whether past convictions are counted under the enumerated clause of the ACCA. Mathis, 136 S.
Ct. at 2243.
III.
Factual and Procedural Background
On May 15, 2006, Mr. Westover pleaded guilty in the District of Wyoming to one count
of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v.
Cotton et al., 2:04-cr-00171-CAB-4 (D. Wyo.) (hereinafter, “Crim. Dkt.”), Crim. Dkt. 124.
The United States Probation Office filed a presentence report in preparation for sentencing.
Dkt. 10. Using the 2005 edition of the Sentencing Guidelines, the Probation Office determined
that being a felon in possession of a firearm provided for a base offense level of 24 under U.S.S.G.
§ 2K2.1(a)(2). Id. at 8, ¶ 13. That level was increased by two under § 2K2.1(b)(4) because Mr.
Westover possessed a stolen firearm. That level was further enhanced by two because Mr.
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Westover obstructed justice by escaping from custody. His adjusted offense level was 28. Id. at
¶ 18. In addition, the Probation Office found Mr. Westover to be an armed career criminal, subject
to an enhanced sentence under 18 U.S.C. § 924(e). Id. ¶ 22. As an armed career criminal, his
offense level was 30, and he was subject to a mandatory sentence of not less than 15 years up to
life imprisonment. Id. ¶¶ 21, 60. The convictions supporting the armed career criminal designation
included two 1985 burglary convictions, a 1985 burglary conviction, a 1990 delivery of cocaine
conviction, a 2003 escape conviction, and a 1996 attempted escape conviction. Id. ¶ 20. That
offense level combined with a criminal history Category VI resulted in a Guidelines custody range
of 168 to 210 months’ imprisonment. Id. at 17, ¶ 61. However, because the statutory mandatory
minimum term of imprisonment was 15 years, the Guideline range became 180 to 210 months’
imprisonment. Id.
Mr. Westover objected to the Probation Office’s finding that he qualified as an armed
career offender, arguing that his 1985 burglary convictions were not violent felonies under the
ACCA because they did not involve a dwelling or a threat of violence. Id. at 19. The probation
officer’s response was that “any generic burglary qualifies, and the analysis is not limited to
burglaries of dwellings.” Id. at 20 (citing Taylor v United States, 495 U.S. 575 (1990)).
Ultimately, the sentencing court found Mr. Westover’s prior convictions qualified as
predicate offenses under the ACCA and sentenced him to the statutory minimum of 180 months’
imprisonment. Crim. Dkt. 131; Crim. Dkt. 132. Mr. Westover did not appeal his conviction or
sentence.
On May 4, 2016, Mr. Westover filed a motion to vacate pursuant to 28 U.S.C. § 2255
arguing that, pursuant to Johnson, his predicate offenses no longer fit under the ACCA. Crim.
Dkt. 189; Westover v. United States, No. 1:16-cv-112-S (D. Wyo.). The district court denied his
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motion, finding that Johnson was inapplicable because Mr. Westover’s prior convictions were
predicate offenses under the “enumerated” clause of the ACCA, and not the “residual” clause.
Crim. Dkt. 191. The Tenth Circuit denied Mr. Westover’s appeal. Westover v. United States, 713
Fed. Appx. 734 (10th Cir. 2017).
The Tenth Circuit noted that Mr. Westover’s burglary
convictions were for generic burglaries as the charging documents referenced entries of “a
dwelling,” a high school “building,” and another “building.” Id. at 738-39.
Mr. Westover now files a petition under § 2241 challenging his sentence.
IV.
Discussion
Citing Mathis, Mr. Westover challenges his conviction as an armed career criminal,
arguing that his prior convictions for Wyoming burglary, escape, and attempted escape no longer
qualify as “violent felony” offenses under the Armed Career Criminal Act. See dkt. 1. Mr.
Westover does not challenge his 1990 drug conviction. The United States filed a response in
opposition and did not contest that Mr. Westover’s escape convictions do not qualify towards his
ACCA enhancement. Dkt. 9.
Each of the three requirements to invoke the savings clause of § 2255(e) is discussed below.
A.
Statutory-Interpretation Case
The Government cannot dispute that Mr. Westover meets the first savings clause
requirement. Dkt. 9 at 7-8 (“At best, while Westover may meet the first two Davenport factors to
show a structural problem, but he cannot show the third.”). This is because Mr. Westover
challenges his sentence under Mathis, which is a case of statutory interpretation. Dawkins v.
United States, 829 F.3d 549, 551 (7th Cir. 2016) (Mathis “is a case of statutory interpretation”);
United States v. Bess, 655 Fed. Appx. 518 (8th Cir. 2016) (recognizing that Mathis inquiry was
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“whether the statutory alternatives were means or elements”). The Court finds that Mr. Westover
meets the first savings clause requirement.
B.
Retroactivity
Next, the Government does not strongly dispute that Mr. Westover meets the second
savings clause requirement. Dkt. 9 at 7-8 (“At best, while Westover may meet the first two
Davenport factors to show a structural problem, but he cannot show the third.”). The Seventh
Circuit has determined that “substantive decisions such as Mathis presumptively apply
retroactively on collateral review.” Holt v. United States, 843 F.3d 720, 721-22 (7th Cir. 2016)
(internal citations omitted). Thus, the second savings clause requirement is not a barrier to further
review.
C.
Miscarriage of Justice
The final question is whether there has been a miscarriage of justice. Mr. Westover
challenges his sentencing as an armed career criminal. The ACCA prescribes a 15–year mandatory
minimum sentence if a defendant is convicted of being a felon in possession of a firearm following
three prior convictions for a “violent felony” or “serious drug offense.” Mathis, 136 S. Ct. at 2248
(quoting § 924(e)(1)). If Mr. Westover is correct that he was erroneously classified as an armed
career criminal and his sentence was wrongly enhanced, he was subjected to a miscarriage of
justice because he should have faced only the felon-in-possession statute’s 10-year maximum
penalty. See Narvaez v. United States, 674 F.3d 621, 627 (7th Cir. 2011) (finding misapplication
of ACCA enhancement “... clearly constitutes a miscarriage of justice.”); Mathis, 136 S. Ct. at
2248; § 924(a)(2); see also Welch v. United States, 604 F.3d 408, 412-13 (7th Cir. 2010)
(recognizing that a sentencing error is cognizable on collateral review “where a change in law
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reduces the defendant’s statutory maximum sentence below the imposed sentence”). In other
words, but for the ACCA conviction, Mr. Westover’s sentence could be no more than 120 months.
The respondent argues that there is no miscarriage of justice in Mr. Westover’s case
because he remains an armed career criminal under the ACCA. Dkt. 9. Mr. Westover disagrees.
Dkt. 1; dkt. 13.
1.
Standard for Analyzing Predicate Offenses
Mr. Westover alleges that he is not an armed career criminal because his prior Wyoming
burglary convictions do not qualify as violent felonies. Dkt. 1 at 1. When examining if a crime
qualifies as a “violent felony,” courts apply a categorical approach when the statute underlying the
conviction is indivisible. Mathis, 136 S. Ct. at 2248. Under the categorical approach, a court
“‘focus[es] solely on whether the elements of the crime of conviction sufficiently match the
elements of [the crime referenced in the federal statute], while ignoring the particular facts of the
case.’” United States v. Elder, 900 F.3d 491, 498 (citing Mathis, 136 S. Ct. at 2248). “A state
crime may qualify as a predicate conviction only if the elements of the state crime mirror, or are
narrower than, the elements of the generic crime.” Id. at 501 (internal quotations and citations
omitted.). “If [a] state law defines the offense more broadly than the [federal statute], the prior
conviction doesn’t qualify as a [predicate offense], even if the defendant’s conduct satisfies all of
the elements of the [federal] offense.” Id. (internal quotations and citations omitted).
“The comparison of elements that the categorical approach requires is straightforward
when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime.” Mathis,
136 S. Ct. at 2248. The court “lines up that crime’s elements alongside those of the generic offense
and sees if they match.” Id.
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If, however, a statute is “divisible,” a modified categorical approach applies. Elder, 900
F.3d at 502. A statute is “divisible” when it “sets out one or more elements of the offense in the
alternative—for example, stating that burglary involves entry into a building or an automobile.”
Descamps v. United States, 570 U.S. 254, 257 (2013). As the Supreme Court explained in
Descamps,
[i]f one alternative (say, a building) matches an element in the generic offense, but
the other (say, an automobile) does not, the modified categorical approach permits
sentencing courts to consult a limited class of documents, such as indictments and
jury instructions, to determine which alternative formed the basis of the defendant’s
prior conviction.
Id. The Supreme Court in Mathis further instructs that there is a difference between alternative
elements of an offense and alternative means of satisfying a single element. Mathis, 136 S. Ct. at
2250. Elements must be agreed upon by a jury. Id. at 2256. When a jury is not required to agree
on the way that a particular requirement of an offense is met, the way of satisfying that requirement
is a means of committing an offense, not an element of the offense. Id. “In determining whether
a statute is divisible, [the court] look[s] first to whether there is ‘a decision by the state supreme
court authoritatively construing the relevant statute’ and establishing which facts are elements and
which are means.” Elder, 900 F.3d at 502 (internal quotations and citations omitted). “Absent a
controlling state-court decision, the text and structure of the statute itself may provide the answer.”
Id. “Finally, [f]ailing those authoritative sources of state law, sentencing courts may look to the
record of a prior conviction itself for the limited purpose of distinguishing between elements and
means.” Id. at 502-03.
2.
Mr. Westover’s Wyoming Burglaries
Mr. Westover asserts that the Wyoming statute for burglary, Wyo. Stat. Ann § 6-3-301, is
indivisible and overbroad, and therefore cannot be a predicate offense for the ACCA. Dkt. 1 at 3-
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4. In response, the United States argues that the Wyoming statute is divisible, citing to Wyoming’s
Pattern Jury Instructions from 2014 and to Mr. Westover’s presentencing report. Dkt. 9 at 9-10.
The Court preliminarily determined that Wyo. Stat. Ann § 6-3-301 was divisible and requested
further supplementation. Dkt. 14. Mr. Westover supplemented with records of his prior burglary
convictions in Wyoming. Dkt. 17.
The Supreme Court has defined burglary as “an unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 598. A
prior burglary can only constitute a “violent felony” if it meets the generic definition of burglary.
Id.
At the time of Mr. Westover’s burglary convictions, the Wyoming burglary statute
provided that: “[a] person is guilty of burglary if, without authority, he enters or remains in a
building, occupied structure or vehicle, or separately secured or occupied portion thereof, with
intent to commit theft or a felony therein.” Wyo. Stat. Ann. § 6-3-301. The text and structure of
the statute reflect that “building,” “occupied structure,” and “vehicle” are alternate elements, and
not alternate means, of an offense. Additionally, the Wyoming Supreme Court has previously held
that the term “occupied structure” includes occupied vehicles, and therefore the statute’s separate
reference to burglary of a “vehicle” stands alone as a distinct offense. Collins v. State, 854 P.2d
688, 695-96 (1993). For these reasons, the statute is divisible.
In contrast, the Iowa burglary statute, which was found to be indivisible in Mathis, defines
burglary as when a person “(1) ‘enters an occupied structure,’ (2) ‘having no right . . . to do so,’
(3) with ‘the intent to commit a felony.’” Mathis, 136 S. Ct. at 2259 (citing Iowa Code § 713.1
(2013)). “Occupied structure” is separately defined in a different statute as including any building,
structure, land vehicle, water vehicle, air vehicle, or similar place. Id. (citing Iowa Code § 702.12).
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Because Wyo. Stat. Ann. § 6-3-301 is divisible, the Court must apply the modified
categorical approach and “consult a limited class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis of [Mr. Westover’s] prior
conviction[s].” Descamps, 570 U.S. at 257. Mr. Westover has submitted records in support of his
1985 and 1986 Wyoming burglary convictions, which reflect that:
•
Mr. Westover was convicted of burglary for entering a dwelling and stealing
alcohol on September 27, 1984, in Case No. 17-193, First Judicial District Court,
Cheyenne, Wyoming, dkt. 17-1 at 2;
•
Mr. Westover was convicted of burglary for entering a building and stealing a
television, a video recorder, acetylene torches and welding tips, tin snaps and food
on September 20, 1984, in Case No. 17-193, First Judicial District Court,
Cheyenne, Wyoming, dkt. 17-1 at 2; and
•
Mr. Westover was convicted of burglary for entering a building with the intent to
commit a larceny or felony on March 31, 1985, in Case No. 17-271, First Judicial
District Court, Cheyenne, Wyoming, dkt. 17-2 at 2.
Mr. Westover’s three prior Wyoming convictions for burglary of a dwelling or building
meet the generic definition of burglary. Thus, these convictions count as violent felonies under
ACCA.
Mathis did not change this analysis. Therefore, Mr. Westover cannot demonstrate a
miscarriage of justice so as to permit a § 2241 petition. Rose vs. Hodges, 423 U.S. 19, 21 (1975)
(“A necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination
by the federal court that [his or her] custody violates the Constitution, laws, or treaties of the United
States.”).
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V.
Conclusion
The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied. The
dismissal of this action is with prejudice. Prevatte v. Merlak, 865 F.3d 894, 901 (7th Cir. 2017)
(“petition should be dismissed with prejudice under 28 U.S.C. § 2255(e)”).
Judgment consistent with this Order shall now issue.
IT IS SO ORDERED.
Date: 11/13/2018
Distribution:
Sara Varner
INDIANA FEDERAL COMMUNITY DEFENDERS
sara.varner@fd.org
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
bob.wood@usdoj.gov
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