United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. DALY, UNITED STATES MAGISTRATE JUDGE
Michael Lee Mitchell, an inmate in the Bureau of Prisons,
filed his First Amended Petition for writ of habeas corpus
under 28 U.S.C. § 2241 on July 7, 2019. (Doc. 15). In
2009, Mitchell was sentenced to 180 months' imprisonment
after pleading guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1).
United States v. Mitchell, No. 09-cr-3012-RK-1, Doc.
21 (W.D. Mo. Sept. 9, 2009); (Doc. 19-5 herein). His sentence
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),  based in part on
three prior Missouri felony convictions: namely, 1990 and
2000 convictions for second-degree burglary pursuant to Mo.
Rev. Stat. § 569.170 (1979), and a 2000 conviction for
first-degree burglary pursuant to Mo. Rev. Stat. §
569.160 (1979). Without the ACCA enhancement, Mitchell would
have faced a statutory maximum penalty of 10 years
for his felon-in-possession conviction. 18 U.S.C. §
now invokes Mathis v. United States, - U.S. -, 136
S.Ct. 2243 (2016) to challenge his sentence enhancement based
on these prior convictions and argues that he is entitled to
be resentenced without said enhancement. Specifically,
Mitchell argues that the Missouri statutes of his prior
convictions are broader than the federal definition of
burglary because they define “inhabitable
structures” to include ships, trailers, sleeping cars,
airplanes, or other vehicles or structures where people
assemble for business, government, education, religion,
entertainment or public transportation, which criminalizes
the burglary of vehicles (such as buses or subways) not
designed for overnight use. (Doc. 15, pp. 17-22). This,
Mitchell argues, criminalizes more conduct than the
“generic” definition of burglary as defined by
the Supreme Court. (Id.).
also asserts that his underlying conviction under 18 U.S.C.
§ 922(g) was defective because the government neither
alleged nor proved that he had knowledge that he was a
convicted felon at the time he possessed a firearm, relying
on the recent opinion in Rehaif v. United States, -
U.S. -, 139 S.Ct. 2191 (2019), in support of this argument.
(Doc. 15, pp. 23-24).
opposes issuance of the Writ on several grounds. First, in an
argument he acknowledges is inconsistent with the current law
of the Seventh Circuit, Respondent contends that inmates who
have previously sought post-conviction relief under §
2255 may not rely upon § 2255(e)'s savings clause to
challenge their sentences via a § 2241 petition. (Doc.
19, pp. 15- 23). Respondent also argues that (1) Mitchell
knowingly and voluntarily waived his right to collateral
review of his sentence, foreclosing his Mathis claim
(id. at pp. 23-27); (2) Mitchell cannot properly
bring his § 2241 claim via § 2255(e)'s savings
clause because his Mathis theory does not rely on a
new rule of statutory interpretation that applies
retroactively on collateral review, (id. at pp.
27-31); (3) Mitchell's Mathis claim fails on its
merits because Missouri's first- and second-degree
burglary statutes are properly considered violent felonies
within the meaning of the ACCA, (id. at pp. 32-42);
and (4) Mitchell's Rehaif claim fails on its
merits because Mitchell was not convicted of “a crime
of which he was innocent, ” and demonstrably possessed
the knowledge that he was a convicted felon to support his
felon-in-possession conviction under 18 U.S.C. §
922(g)(1). (Doc. 19, pp. 42-50).
replied to Respondent's Response. (Doc. 21). This matter
is now ripe for resolution. For the reasons discussed below,
Mitchell's First Amended Habeas Petition (Doc. 15) will
be GRANTED IN PART to the extent that it
relies on Mathis v. United States, - U.S. -, 136
S.Ct. 2243 (2016).
Facts and Procedural History
13, 2009, Mitchell pleaded guilty 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. Mitchell, No.
09-cr-3012-RK-1, Doc. 15 (W.D. Mo. May 13, 2009); (Doc. 19-3
herein). Mitchell entered into a written Plea Agreement in
which he agreed that he was properly considered an Armed
Career Criminal based on his criminal history, which
explicitly included his prior Missouri first- and
second-degree burglary convictions, and also agreed that the
minimum penalty for his conviction was fifteen (15) years
imprisonment. Id. at ¶¶ 2-5. Mitchell also
agreed that he:
expressly waives his right to appeal his sentence, directly
or collaterally, on any ground except a sentence imposed in
excess of the statutory maximum or an illegal sentence, that
is, sentencing error more serious than a misapplication of
the Sentencing Guidelines, an abuse of discretion, or the
imposition of an unreasonable sentence.
Id. at ¶ 15.
indictment charged that Mitchell had “been convicted of
crimes punishable by imprisonment for terms exceeding one
year” and thereafter “knowingly possess[ed] a
firearm” in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2), and 924(e)(1), but did not specifically
and separately allege that Mitchell had knowledge of his
convicted-felon status when he possessed a firearm.
Mitchell, No. 09-cr-3012-RK-1, Doc. 1, p. 1 (W.D.
Mo. Feb. 24, 2009); (Doc. 19-2 herein). However, in the Plea
Agreement, Mitchell did affirmatively agree that he
“knowingly committed [the] offense [charged in the
indictment], and is in fact guilty of [said] offense, ”
as well as agreeing that he “ha[d] previously been
convicted of” several “felony offenses”
prior to his possession of the firearm in question. Doc.
19-2, pp. 1-3.
Presentence Report (“PSR”) determined that his
prior criminal history, including his three Missouri burglary
convictions, qualified him for the ACCA enhancement and set
his minimum term of imprisonment at 15 years (180 months)
pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e).
(Doc. 18-1, pp. 3, 6, 9-13, 22). In an addendum to the PSR,
Mitchell lodged several objections to some of the information
contained therein to preserve certain objections under the
Fifth and Sixth Amendments of the United States
Constitution-however, Mitchell did not object to the
PSR's inclusion of “information expressly contained
in the charging documents of conviction, written plea
agreements, judgments and transcripts of the change of plea
or sentencing hearings” as to his criminal history and
prior convictions referenced in the PSR. Id. at pp.
determined Mitchell's Sentencing Guideline range to be
168 to 210 months' imprisonment based on a total offense
level of 30 and a criminal history category of VI, but his
status as an armed career criminal resulted in an effective
Guideline range of 180 to 210 months' imprisonment. (Doc.
18-1, p. 22, ¶ 65). Mitchell was ultimately sentenced to
180 months imprisonment, five years supervised release, and a
$100 special assessment. Mitchell, No.
09-cr-3012-RK-1, Doc. 21 (Sept. 9, 2009); (Doc. 19-5 herein).
did not file a direct appeal. After being sentenced, Mitchell
filed his first motion under 28 U.S.C. § 2255, in which
he argued that the statute of his conviction, 18 U.S.C.
§ 922(g)(1), violated the Second Amendment, rendering
his incarceration a violation of his Fifth Amendment due
process rights and his guilty plea involuntary.
Mitchell, No. 09-cr-3012-RK-1, Doc. 25, p. 1. This
motion was summarily denied by the sentencing court, and
Mitchell did not appeal that decision. Id. at p. 2.
filed an application for authorization to file a successive
§ 2255 motion following the Supreme Court's decision
in Samuel Johnson v. United States, 576 U.S. -, 135
S.Ct. 2551 (2015), and the Eighth Circuit granted his
application on May 17, 2016. Mitchell v. United
States, No. 15-3295 (8th Cir. 2016). Mitchell proceeded
with the § 2255 motion in the district court, arguing
that Johnson's invalidation of the ACCA's
residual clause rendered his ACCA enhancement void because
his prior convictions qualified as predicate offenses only
under the now-unconstitutional residual clause. Mitchell
v. United States, No. 16-cv-3194-RK, Doc. 1 (W.D. Mo.
May 19, 2016). During the pendency of this motion, the
Supreme Court decided Mathis v. United
States, - U.S. -, 136 S.Ct. 2243 (2016), and Mitchell
incorporated additional arguments based on Mathis
into his reply briefing. Id. at Doc. 7, pp. 3-10.
district court initially granted this § 2255 motion,
citing both Johnson and Mathis in support
of re-sentencing Mitchell without the ACCA enhancement.
Id. at Doc. 9. However, in a subsequent Rule 59(e)
motion to alter or amend the judgment, the government
successfully argued that Mitchell's claims were based
wholly on Mathis, a statutory interpretation case,
and completely unrelated to Johnson, a
constitutional law case, therefore taking Mitchell's
motion outside the permissible scope of a § 2255 motion.
Id. at Doc. 26 (order granting Rule 59(e) motion,
denying § 2255 motion, amending judgment, and denying a
certificate of appealability). The Eighth Circuit later
affirmed the denial of a certificate of appealability, and
dismissed Mitchell's appeal. Mitchell v. United
States, No. 18-3249 (8th Cir. May 21, 2019). Mitchell
then filed the instant habeas action in May 2019. (Doc. 3).
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.
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. A § 2255 motion is ordinarily the
“exclusive means for a federal prisoner to attack his
conviction.” Kramer v. Olson, 347 F.3d 214,
217 (7th Cir. 2003). And, a prisoner is generally limited to
only one challenge of his conviction and sentence
under § 2255. A prisoner 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).
it is possible, under very limited circumstances, for a
prisoner to challenge his federal conviction or sentence
under § 2241. 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
Seventh Circuit has explained that, in order to fit within
the savings clause following Davenport, a petitioner
must meet three conditions. 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).
Davenport, the Seventh Circuit has made it clear
that “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).
purpose of preserving the issue, Respondent first presents
the Court with an argument he admits is inconsistent with the
binding precedent of this Circuit-that is, “inmates,
like petitioner, who previously challenged their convictions
or sentences in a § 2255 petition may not later
challenge their convictions under § 2255(e)'s
‘saving clause' based on a new case of statutory
interpretation where the underlying claim was cognizable, but
unraised, in the previous § 2255 proceeding even if that
claim would have likely failed under existing circuit
precedent.” (Doc. 19, pp. 15-27). As stated above, the
Seventh Circuit, like the majority of the Circuit Courts of
Appeals,  has specifically held to the contrary
dating back to In re Davenport in 1998, and has
reiterated its savings clause test as recently as September
2019. See Chazen v. Marske, 938 F.3d 851, 856 (7th
Cir. 2019). Because Davenport and its progeny remain
binding precedent on this Court, this argument must be
rejected out of hand.
of Plea Agreement
Court finds Respondent's argument that the terms of
Mitchell's written guilty plea agreement waived his right
to bring his Mathis argument in this action
unpersuasive. It is true that the Seventh Circuit and other
courts in this District have enforced appeal and collateral
attack waivers where a petitioner only reserved the right to
collaterally attack a sentence “imposed . . . in excess
of the Sentencing Guidelines” or a sentence not
“within the maximum provided in the statutes of
conviction.” See United ...