United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
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),  possession of methamphetamine (Count 2),
possession of a stolen firearm (Count 4),  and maintaining a
place for the manufacture, distribution, or use of a
controlled substance (Count 5). 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) 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 have faced
a statutory maximum penalty of 10 years on the felon
in possession counts. 18 U.S.C. § 924(a)(2).
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
FACTS AND PROCEDURAL HISTORY
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. The Presentence Report (“PSR”)
provided to the sentencing court listed three 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.
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.
Appeal and First Petition for Habeas Corpus Pursuant to 28
U.S.C. § 2255
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 Fed.Appx.
869, 870-72 (2003). At that time, Rhodes did not appeal the
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
then filed a motion under 28 U.S.C. § 2255 in May of
2004. Rhodes, No. 01-cr-0202-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.
Applications for Authorization to File a Second or Successive
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.
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 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.
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-0202-R-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.
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.
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).
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
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).
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 intent
to commit a crime, the Iowa statute was overbroad.
Mathis, 136 S.Ct. at 2248, 2250 (quoting Taylo ...