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Mitchell v. Warden, Fci-Greenville

United States District Court, S.D. Illinois

November 8, 2019

MICHAEL LEE MITCHELL, #21266-045, Petitioner,
v.
WARDEN, FCI-GREENVILLE, Respondent.

          MEMORANDUM AND ORDER

          REONA J. DALY, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.[2] (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), [3] 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.[4] 18 U.S.C. § 924(a)(2).

         Mitchell 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.).

         Mitchell 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).

         Respondent 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).

         Mitchell 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).

         Relevant Facts and Procedural History

         Plea and Sentencing

         On May 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.

         The 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.

         Mitchell's 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. 25-26.

         The PSR 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).

         Post-Conviction Challenges

         Mitchell 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.

         Mitchell 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.

         The 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).

         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. 1998).

         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. 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).

         However, 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 nonexistent offense.”

         The 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).

         Since 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).

         Analysis

         For the 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, [5] 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.

         Effect of Plea Agreement

         The 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 ...


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