Boarden v. Williams

Filing 6

ORDER signed by Judge J.P. Stadtmueller on 8/23/2017: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DISMISSING action; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Chauncey Boarden at Oxford Federal Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHAUNCEY BOARDEN,
Petitioner,

v.

Case No. 17-CV-875-JPS

Criminal Case No. 14-CR-61-3-JPS

LOUIS WILLIAMS,
Respondent.

ORDER

On June 23, 2017, Chauncey Boarden (“Boarden”), a federal
prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, challenging the career-offender enhancement he was assessed
under the U.S. Sentencing Guidelines. (Docket #1). The Court must screen
Boarden’s motion under Rule 4 of the Rules Governing Section 2254
Proceedings, which requires the Court to promptly examine the motion
and dismiss it “[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the petitioner is not
entitled to relief.”1
On July 25, 2014, Boarden pled guilty to a one-count information
charging him with conspiracy to distribute heroin, in violation of 18 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), 846, and 2. On December 5, 2014, he was
sentenced to 111 months of incarceration. In determining the range of
imprisonment suggested by the U.S. Sentencing Guidelines, the Court

Rule 1(b) of those Rules gives this Court the authority to apply the rules
to other habeas corpus cases, including the rule permitting screening of the
petition.
1

found that Boarden was a “career offender” pursuant to U.S.S.G. §
4B1.1(b).
The Guidelines provide that those who qualify as career offenders
must be assessed certain offense level and criminal history category
increases. Id. A defendant is a career offender if (1) he was at least
eighteen years old at the time he committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions for either a crime of violence or a
controlled substance offense. Id. § 4B1.1(a). In the instant petition, Boarden
claims that in light of the Supreme Court’s recent decision in Mathis v.
United States, 136 S. Ct. 2243 (2016), and several decisions of state and
district courts, the predicate offenses relied upon to impose his careeroffender enhancement no longer qualify as such. Consequently, he
believes he is entitled to resentencing without the enhancement.
One initial problem arising from the nature of his petition can be
quickly disposed of. Federal prisoners who seek to bring collateral attacks
on their conviction or sentences must ordinarily bring an action under 28
U.S.C. § 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 Section 2241 if his Section 2255 remedy “is inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). In re
Davenport, 147 F.3d 605 (7th Cir. 1998), established three conditions for this
exception to apply. Id. at 610–12. First, the prisoner must show that he
relies on a “statutory-interpretation case,” rather than a “constitutional
case.” Rios, 696 F.3d at 640. Second, the prisoner must show that he relies
on a retroactive decision that he could not have invoked in a timely
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Section 2255 motion. Id. “The third condition is that [the] sentence
enhancement. . .have been a grave enough error to be deemed a
miscarriage of justice corrigible therefore in a habeas corpus proceeding.”
Id.; see also Davenport, 147 F.3d at 611 (a prisoner must show “a
fundamental defect in his conviction or sentence”).
Some courts have held that Section 2241 petitions raising Mathis
concerns are proper. See, e.g., Homes v. True, Case No. 17-cv-0628-DRH,
2017 WL 3085803, at *2 (S.D. Ill. July 20, 2017). Here, the Court will assume
without deciding that Boarden has properly invoked Section 2241 as the
vehicle for his claims. Because the claims are ultimately without merit, this
is the most expedient way to move toward resolution of this matter.
The Court now turns to an evaluation of Boarden’s claims.
Boarden’s petition attacks both of the predicate offenses cited in his
revised presentence report as supporting the application of the careeroffender Guideline enhancement. The first cited predicate conviction is for
manufacture, distribution or delivery of cocaine, in violation of Wis. Stat. §
961.41(1)(cm)1r. The second is a conviction for robbery with threat of
force, in violation of Wis. Stat. § 943.32(1)(b). His arguments as to each are
distinct, so the Court will address them in turn.
His first claim, which attacks his narcotics conviction, relies on the
Mathis decision. In Mathis, the Supreme Court dealt with the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which, like the
Guidelines career-offender provision that was applied to Boarden, calls
for enhanced punishment when a defendant has previously been
convicted of certain types and numbers of offenses. Determining whether
the defendant’s prior convictions constitute proper predicates requires
application of either a “categorical” approach, in which the sentencing
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court compares the category of enhancing offenses with the statutory
elements of the prior offenses, or—with respect to statutes having
multiple

alternative

elements—requires

a

“‘modified

categorical

approach,’” in which the “sentencing court looks to a limited class of
documents (for example, the indictment, jury instructions, or plea
agreement and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Mathis, 136 S. Ct. at 2248–49 (quoting
Shepard v. United States, 544 U.S. 13, 26 (2005)); Descamps v. United States,
133 S. Ct. 2276, 2281 (2013).
It is important to appreciate the limitations on the categorical
approach. If the statutory definition of the purported predicate offense is
the same as (or narrower than) the Guidelines definition—that is, a
generic version of the crime in question—the offense can be counted.
United States v. Edwards, 836 F.3d 831, 835 (7th Cir. 2016). But if the statute
defines the offense more broadly than the Guidelines, the prior conviction
does not count, “even if the defendant’s actual conduct (i.e., the facts of
the crime)” would fit within the Guidelines definition. Mathis, 136 S. Ct. at
2248.
The Mathis Court confronted the question of whether the lower
courts’ use of the modified categorical approach was appropriate when
the defendant had previously been convicted not under a statute that had
multiple, alternative elements but rather under one that “list[ed] multiple,
alternative means of satisfying one (or more) of its elements.” Mathis, 136
S. Ct. at 2248. It answered that question in the negative. Id. at 2253.
Specifically, because the crime at issue (there, burglary) could be
committed under the statute by different means than generic, commonlaw burglary, the lower court was not permitted to deploy the modified
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categorical approach. Id. In other words, the court could not save the
burglary conviction by looking to charging papers and considering
whether the defendant actually burglarized a building or dwelling, since
the statute was nondivisible and categorically not a violent felony under
the ACCA. See id. at 2248–49, 2257–58.
Boarden expends considerable effort arguing that his drug offense
can no longer be considered a predicate after Mathis because Wisconsin
includes the possibility of conviction based on delivery of cocaine, which
is broader than the Guidelines definition of “controlled substance
offense.” As used in the career-offender Guideline, that term means “an
offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or
dispense.” U.S.S.G. § 4B1.2(b). Thus, Boarden is right that the Guideline
on its face does not use the word “delivery.”
Moreover, Boarden contends, Wisconsin defines “delivery” as “the
actual, constructive or attempted transfer from one person to another of a
controlled substance or controlled substance analog, whether or not there
is any agency relationship.” Wis. Stat. § 961.01(6); State v. Pinkard, 706
N.W.2d 157, 595 (Wis. Ct. App. 2005). According to him, because there are
many alternative means of “delivery” under Wisconsin law, including
mere attempted delivery, this underscores the notion that the Wisconsin
offense is broader than the definition of a controlled substance offense in
the Guidelines. See Hinkle v. United States, 832 F.3d 569, 576 (5th Cir. 2016).

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Thus, his argument goes, his drug conviction categorically cannot count as
a predicate for the career-offender enhancement. Mathis, 136 S. Ct. at 2253.
The Court need not address this first claim, however, to dispose of
Boarden’s petition, as the record shows that he has two other valid,
qualifying predicate convictions. See McCoy v. United States, Case No. 16cv-0631-MJR, 2017 WL 1233894, at *5 (S.D. Ill. Apr. 4, 2017) (finding that
with two valid qualifying predicate convictions, the court need not
consider the petitioner’s challenge to any other potential predicates). Both
of these other convictions qualify under the Guidelines’ definition of
“crime of violence.” At the time he was sentenced, that term was defined
as “any offense under federal or state law, 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, or (2) is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a serious potential risk
of physical injury to another.” Id. § 4B1.2(a) (emphasis added). The italicized
portion of this definition is known as the “residual” clause.
First, Boarden’s petition overlooks the fact that, in addition to his
narcotics and robbery convictions, he has another potential qualifying
predicate offense identified in his revised presentence report: vehicular
flight, in violation of Wis. Stat. § 346.04(3). This Court recently explained
in great depth how the crime of vehicular flight in Wisconsin constitutes a
crime of violence under the residual clause of the career-offender
Guideline, and is therefore an appropriate predicate for that enhancement.
Everett v. United States, Case No. 17–CV–523–JPS, 2017 WL 2116282, at *2–6
(E.D. Wis. May 15, 2017). The Court will not repeat that lengthy
explanation here. It suffices to note that pursuant to the Supreme Court’s
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dictates in Sykes v. United States, 564 U.S. 1, 9–11 (2011), any form of
vehicular flight in Wisconsin must be viewed as involving a serious
potential risk of physical injury to another. This brings it within the
Guidelines’ residual clause. Everett, 2017 WL 2116282, at *5–6. Although
the Probation Office did not expressly list Boarden’s vehicular flight
offense as a predicate for the career-offender enhancement, this does not
mean that it cannot be so characterized.
Second, the Court is not convinced by Boarden’s second claim in
his petition—that his robbery conviction does not count as a crime of
violence under the Guidelines. Boarden’s robbery conviction stems from
Wis. Stat. § 943.32(1), which provides that
Whoever, with intent to steal, takes property from the
person or presence of the owner by either of the following
means is guilty of a Class E felony:
(a) By using force against the person of the owner with
intent thereby to overcome his or her physical resistance or
physical power of resistance to the taking or carrying away
of the property; or
(b) By threatening the imminent use of force against the
person of the owner or of another who is present with intent
thereby to compel the owner to acquiesce in the taking or
carrying away of the property.
Wis. Stat. § 943.32(1). Boarden was convicted under subsection (b) of this
section, meaning that he merely threatened the imminent use of force
against his victim.2

Boarden does not challenge this statute on divisibility grounds under
Mathis, see (Docket #1 at 9–11), so the Court will not consider such an argument.
2

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The Seventh Circuit has held that, under this statute, robbery
qualifies as a crime of violence under the “elements” clause—the first
clause—of U.S.S.G. § 4B1.2(a), since it has as an element the use,
attempted use, or threatened use of physical force against another. See
United States v. Otero, 495 F.3d 393, 401 (7th Cir. 2007); United States v.
Beason, 493 F. App’x 747, 749 (7th Cir. 2012). Indeed, in the notes
accompanying the Guidelines, robbery is listed as a qualifying crime of
violence. U.S.S.G. § 4B1.2, Application Note 1. Thus, it appears
unmistakable that robbery in Wisconsin constitutes a crime of violence for
Guidelines purposes. See Branch v. United States, 203 F. Supp. 3d 992, 996
(W.D. Wis. 2016).
One member of this Court has reasoned to the contrary in a case
arising under the ACCA, see Robinson v. United States, 188 F. Supp. 3d 857,
865 (E.D. Wis. 2016), finding that robbery under Wis. Stat. § 943.32(1) has
been interpreted by Wisconsin courts so as to not necessarily require force
or the threat of force. Boarden cites these same Wisconsin cases and
appears to rely on the same reasoning, arguing that his conviction is not
for a crime of violence because it can be committed by nonviolent means.
See (Docket #1 at 9–10) (citing Walton v. State, 218 N.W.2d 309 (Wis. 1974);
Whitaker v. State, 265 N.W.2d 575 (Wis. 1978)). But Robinson was an ACCA
case, not a Guidelines case, and, in any event, this Court is bound to
follow the guidance of the Court of Appeals when directly on point, as
Otero and Beason are here. Thus, Robinson does not control the outcome in
this case.
Moreover, even if Boarden’s robbery did not satisfy the elements
clause, it undoubtedly would qualify as a crime of violence under the
residual clause. Boarden’s conviction required a showing that he
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threatened the imminent use of force against another person, which is
indisputably “conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a)(2); see also Sykes, 564 U.S. at 12
(holding that crimes qualifying under the residual clause must be
sufficiently “purposeful, violent, and aggressive”). This is true whether or
not Boarden actually employed any force. See United States v. Wallace, 326
F.3d 881, 886 (7th Cir. 2003) (courts must assess risk of injury based on
“the crime’s statutory elements, without considering the underlying facts
of the conviction”).
Indeed, Boarden’s argument that he could have committed the
crime in non-violent ways has no relevance here, since “‘in determining
whether an offense falls under the [residual] clause, the benchmark should
be the possibility of violent confrontation, not whether one can postulate a
nonconfrontational hypothetical scenario.’” United States v. Fife, 81 F.3d 62,
64 (7th Cir. 1996) (quoting United States v. Davis, 16 F.3d 212, 217 (7th Cir.
1994)). Using the other offenses enumerated in the Guideline as points of
comparison—burglary, arson, extortion, and crimes involving the use of
explosives—it is plain that robbery with the threat of force is, in the
ordinary case, at least as dangerous as any other qualifying crime of
violence. See United States v. Miller, 721 F.3d 435, 439 (7th Cir. 2013). Thus,
the Court finds that Boarden’s robbery conviction qualifies as a crime of
violence and is therefore a valid predicate for the imposition of the careeroffender Guideline enhancement.3
Boarden’s case is further distinguishable from Robinson on this ground,
as the ACCA’s residual clause has been invalidated, Johnson v. United States, 135
S. Ct. 2551 (2015), but the identical provision in the Guidelines has not, Beckles v.
United States, 137 S. Ct. 886 (2017). See Stewart v. United States, 191 F. Supp. 3d
923, 925 (E.D. Wis. 2016).
3

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Consequently, Boarden has at least two qualifying predicate
convictions, and his career-offender Guideline enhancement was
appropriately imposed. His petition is therefore without merit and must
be dismissed. See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Boarden must make a
“substantial showing of the denial of a constitutional right” by
establishing that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal citations omitted). In light of the well-settled principles
governing the disposition of Boarden’s claim, as outlined above, the Court
cannot fairly conclude that reasonable jurists would debate whether his
motion should be decided differently; as a consequence, the Court must
deny a certificate of appealability to him.
Finally, the Court closes with some information about the actions
that Boarden may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within thirty days
of the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the 30-day deadline.
See id. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
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this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure
59(e) must be filed within 28 days of the entry of judgment. The Court
cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a reasonable
time, generally no more than one year after the entry of the judgment. The
Court cannot extend this deadline. Id. A party is expected to closely
review all applicable rules and determine what, if any, further action is
appropriate in a case.
Accordingly,
IT IS ORDERED that Petitioner’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED; and
IT IS FURTHER ORDERED that a certificate of appealability be
and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 23rd day of August, 2017.
BY THE COURT:

___________________________________________

J. P. Stadtmueller
U.S. District Judge

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