Nino Franklin v. Randy Keyes ( 2022 )

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 19-1758
NINO ALONZO FRANKLIN,
Petitioner-Appellant,
v.
RANDY KEYES, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 17-cv-1266 — James E. Shadid, Judge.
____________________
ARGUED MAY 21, 2021 — DECIDED APRIL 4, 2022
____________________
Before SYKES, Chief Judge, and RIPPLE and HAMILTON,
Circuit Judges.
SYKES, Chief Judge. This appeal raises yet another proce-
durally complex question about a federal prisoner’s access to
habeas review under 28 U.S.C. § 2241 via the “saving clause”
in 28 U.S.C. § 2255(e) as interpreted in In re Davenport,
147 F.3d 605 (7th Cir. 1998). We have addressed a cluster of
similar cases in the wake of the Supreme Court’s decision in
Mathis v. United States, 136 S. Ct. 2243 (2016), which clarified
2 No. 19-1758
how courts should classify prior convictions for purposes of
the enhanced penalties in the Armed Career Criminal Act
(“ACCA” or “the Act”), 18 U.S.C. § 924(e). Two of our
Mathis-based saving-clause cases are especially important
here: Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019), and
Guenther v. Marske, 997 F.3d 735 (7th Cir. 2021).
Nino Franklin was convicted and sentenced in 2014 in
the District of Minnesota for a federal firearms offense. The
court imposed an enhanced sentence under the ACCA based
on six of Franklin’s prior convictions, including three for
Minnesota burglary and two for Illinois residential burglary.
Franklin neither appealed nor pursued § 2255 collateral
relief in the sentencing court within a year of the date on
which the judgment became final. 28 U.S.C. § 2255(f)(1).
Soon after Mathis, however, he filed a petition for habeas
corpus under § 2241 in the Central District of Illinois, where
he was confined. Relying on Mathis, he argued that he was
wrongly sentenced as an armed career criminal. He was on
solid ground about the Minnesota burglary convictions: as
Mathis clarified, they should not have been counted as
ACCA predicates. See Guenther, 997 F.3d at 741–42; Chazen,
938 F.3d at 859–60. But three qualifying convictions re-
mained—enough to support his enhanced sentence—so the
district judge denied relief. After Franklin appealed, we held
in United States v. Glispie that an Illinois conviction for resi-
dential burglary does not qualify as an ACCA predicate.
978 F.3d 502, 503 (7th Cir. 2020) (per curiam). That knocked
out two of the remaining predicates, leaving Franklin with
only one.
The government now concedes that Franklin’s sentence is
unlawful. But it opposes § 2241 relief, arguing that he has
No. 19-1758 3
not satisfied Davenport’s requirements to pass through the
saving-clause gateway because his claim relies not on Mathis
but on Glispie. The government maintains that Franklin
could have challenged the use of his two Illinois burglary
convictions as ACCA predicates on direct appeal or in a
timely § 2255 motion in the sentencing court.
We disagree and reverse the judgment. Though our deci-
sion in Glispie is important to Franklin’s ultimate entitlement
to relief on the merits, his claim rests fundamentally on
Mathis, which corrected the Eighth Circuit’s misunderstand-
ing of the method for classifying convictions under the
ACCA and other recidivist provisions. Before the Supreme
Court’s corrective action, any challenge to the use of his
Minnesota or his Illinois burglaries as ACCA predicates was
foreclosed in that circuit.
The only lingering question after Chazen, Guenther, and
Glispie is whether Franklin’s claim falls within the Davenport
line of cases in the first place. Davenport dealt with a prisoner
who was blocked from using § 2255 because of § 2255(h)’s
bar on successive motions, which made the remedy by
motion “inadequate or ineffective” within the meaning of
the saving clause. 147 F.3d at 610–11. Here, the limitations
period in § 2255(f)—not § 2255(h)’s bar on successive mo-
tions—blocked a Mathis-based motion in the sentencing
court. But the critical point under Davenport is that § 2255
never gave Franklin an opportunity to challenge his status as
an armed career criminal. At all times within Franklin’s one-
year window under § 2255(f), a challenge to his sentence was
destined to fail given Eighth Circuit precedent. Mathis
clarified that his sentence is unlawful, but § 2255 never
4 No. 19-1758
permitted him to make that claim, through no fault of his
own.
Accordingly, Franklin has satisfied the Davenport criteria
to access § 2241 habeas review through the § 2255(e) saving
clause. We remand with instructions to grant appropriate
habeas relief.
I. Background
A. Franklin’s Case in the District Court in Minnesota
In October 2013 Franklin pleaded guilty in the District of
Minnesota to unlawfully possessing a firearm as a felon,
18 U.S.C. § 922(g)(1). The offense normally carries a 10-year
maximum and no minimum sentence, id. § 924(a)(2), but
Franklin agreed that he qualified as an armed career crimi-
nal under the ACCA, which requires a 15-year minimum
sentence and lifts the 10-year maximum to life in prison if
the offender has three or more prior convictions for a “vio-
lent felony” or a “serious drug offense,” § 924(e). Only the
“violent felony” definition is at issue here.
The Act defines “violent felony” as any crime punishable
by a prison 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,” § 924(e)(2)(B)(i) (the
“elements clause”); or (2) “is burglary, arson, or extortion,”
§ 924(e)(2)(B)(ii) (the “enumerated-offenses clause”); or
(3) “otherwise involves conduct that presents a serious
potential risk of physical injury to another,” id. (the “residual
clause”).
Franklin’s presentence report (“PSR”) identified six po-
tentially qualifying convictions in his criminal record:
No. 19-1758 5
• Two 1995 Illinois convictions for separate residential
burglaries, 720 ILL. COMP. STAT. 5/19-3 (1995) (amend-
ed 2001), committed in 1993 and 1994;
• One 1995 Illinois conviction for aggravated kidnap-
ping/armed robbery, id. §§ 5/10-2, 5/18-2;
• One 2006 Minnesota conviction for second-degree
burglary, MINN. STAT. § 609.582(2);
• One 2006 Minnesota conviction for third-degree bur-
glary, id. § 609.582(3); and
• One 2012 Minnesota conviction for second-degree
burglary, § 609.582(2).
Franklin’s case proceeded to sentencing in May 2014.
Consistent with the recommendations in the PSR, the judge
found that Franklin qualified for the ACCA’s enhanced
penalties and imposed a 200-month sentence. Franklin did
not appeal. Nor did he seek collateral relief in the sentencing
court under § 2255 within the statutory limitations period—
that is, within a year of the date on which the judgment
became final. § 2255(f)(1). A § 2255 motion is the default—
and usually the exclusive—vehicle for federal prisoners to
seek collateral relief.
B. New Legal Developments
The developments that knocked out Franklin’s Minnesota
and Illinois burglary convictions as ACCA predicates began
two years after he was sentenced but proceeded on slightly
different tracks. It started with the doctrinal shift for
Minnesota burglary in response to Mathis, which we dis-
cussed in depth in Chazen, 938 F.3d at 857–60. Guenther
6 No. 19-1758
provides a shortened version of this history, 997 F.3d at 739–
41, and here we can be even more abbreviated.
The crimes of second- and third-degree burglary in
Minnesota are enumerated in “a single statute and start from
the same basic definition” but vary based on “different sets
of aggravating circumstances.” Id. at 739. The statute defines
second-degree burglary to cover anyone who “enters a
building without consent and with intent to commit a crime,
or enters a building without consent and commits a crime
while in the building, either directly or as an accomplice,”
provided that he either uses burglary tools or the entry
occurs at one of several enumerated locales. MINN. STAT.
§ 609.582(2). Third-degree burglary is defined almost identi-
cally but without the aggravating circumstances, covering
anyone who “enters a building without consent and with
intent to steal or commit any felony or gross misdemeanor
while in the building, or enters a building without consent
and steals or commits a felony or gross misdemeanor while
in the building.” Id. § 609.582(3).
Whether a prior conviction counts as an ACCA predicate
hinges on the application of what the Supreme Court has
called the “categorical approach,” which originated in its
decision in Taylor v. United States, 495 U.S. 575, 602 (1990).
The categorical approach requires an analysis of the statuto-
ry definition of the crime of conviction rather than the
particular facts of the underlying case. Id. at 600–01. As
applied to the enumerated-offenses clause of the violent-
felony definition, the categorical approach compares the
statutory definition of the crime to the “generic” version of
the offense enumerated in the ACCA. Id. at 598. As Taylor
held, generic burglary for ACCA purposes consists of the
No. 19-1758 7
following elements: “an unlawful or unprivileged entry into,
or remaining in, a building or other structure, with intent to
commit a crime.” Id.Accordingly, under the categorical approach, Franklin’s
three Minnesota burglary convictions qualify as violent-
felony ACCA predicates only if the statutory elements of the
second- and third-degree crimes categorically match (or are
narrower than) those of generic burglary. When he was
sentenced in May 2014, “Eighth Circuit precedent supported
a categorical match.” Guenther, 997 F.3d at 739 (citing United
States v. LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006)).
Two years later, however, the Supreme Court’s decision
in Mathis laid the groundwork for a change in course.1
Mathis provided crucial guidance on how to classify convic-
tions for ACCA purposes when the statute under which the
defendant was convicted is alternatively phrased. Briefly, if a
single, alternatively phrased criminal statute lists alternative
elements, “then the statute defines multiple separate crimes
and is said to be ‘divisible.’” Id. A divisible statute justifies
application of the “modified categorical approach,” which
permits the sentencing court to examine “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 2249 (citing Shepard v. United States, 544 U.S. 13, 26
(2005)).
1 Inthe interim, the Supreme Court held that the ACCA’s residual clause,
18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson v. United
States, 576 U.S. 591, 597 (2015). Johnson removes the possibility that
Franklin’s prior convictions could alternatively be classified as violent
felonies under that clause.
8 No. 19-1758
As Mathis clarified, however, the modified categorical
approach does not apply—and judges may not consult these
sources (the so-called Shepard documents)—when an alterna-
tively phrased statute has an “indivisible” structure, i.e.,
where “the statutory alternatives are simply different factual
means of committing the crime.” Guenther, 997 F.3d at 739. If
the alternatives in an indivisible state statute sweep more
broadly than the generic offense, then a conviction under
that statute does not qualify as an ACCA predicate “even if
[the defendant’s] conduct fits within the generic offense.”
Mathis, 136 S. Ct. at 2251.
Mathis’s elements–means guidance “narrowed the range
of state statutes that qualify as violent felony predicates
under the [ACCA].” Chazen, 938 F.3d at 855. This narrowing
effect had special force in the Eighth Circuit, where Mathis
arose (that case concerned Iowa’s burglary statute). 136 S. Ct.
at 2250. Before Mathis the Eighth Circuit applied the modi-
fied categorical approach to all cases involving convictions
under overbroad, alternatively phrased statutes without
regard to the elements–means distinction that is so central to
the concept of divisibility. Chazen, 938 F.3d at 857–58. That
circuit and two others (the Sixth and the Tenth) were mis-
reading the Court’s decision in Descamps v. United States,
570 U.S. 254 (2013), which had also endeavored to clarify the
modified categorical approach. Chazen, 938 F.3d at 858–59
(explaining the division among the circuits about the proper
application of the modified categorical approach after
Descamps and before Mathis). Laboring under this doctrinal
error, when confronted with a categorically overbroad
statute, courts in the Eighth Circuit looked to the Shepard
documents too freely, which had the effect of counting
convictions as ACCA predicates when they did not qualify.
No. 19-1758 9
Mathis corrected the Eighth Circuit’s entrenched misunder-
standing of divisibility and the modified categorical ap-
proach. 136 S. Ct. at 2250–51.
After Mathis the Eighth Circuit reversed course and rec-
ognized that the Minnesota crimes of second- and third-
degree burglary sweep more broadly than generic burglary,
and further, that the alternatives listed in each statute are
different factual means of committing the crime rather than
different elements of separate crimes. United States v.
Crumble, 878 F.3d 656, 661 (8th Cir. 2018) (second-degree
burglary); United States v. McArthur, 850 F.3d 925, 940 (8th
Cir. 2017) (third-degree burglary). The court thus concluded
that Minnesota burglary is a categorical mismatch with
Taylor’s generic burglary because the offense does not “re-
quire that the defendant have formed the intent to commit a
crime at the time of the nonconsensual entry or remaining
in” the burglarized structure. Crumble, 878 F.3d at 661 (quo-
tation marks omitted). And because the second- and third-
degree statutes are indivisible, the court recognized that the
modified categorical approach—i.e., checking the Shepard
documents to see if the defendant actually committed gener-
ic burglary—does not apply. Id. at 660–61; McArthur,
850 F.3d at 940. Our circuit followed suit in Van Cannon v.
United States, 890 F.3d 656, 664–65 (7th Cir. 2018). 2
2 As we explained in Guenther, the Eighth Circuit’s revised understand-
ing of Minnesota burglary may be somewhat in flux after Quarles v.
United States, 139 S. Ct. 1872 (2019). Guenther v. Marske, 997 F.3d 735, 741
(7th Cir. 2021) (citing Raymond v. United States, 933 F.3d 988, 992 (8th Cir.
2019)). But Quarles left our conclusion in Van Cannon intact. Id. Because
the government concedes that Franklin’s sentence is unlawful, we do not
need to address the effect of this uncertainty in the Eighth Circuit.
10 No. 19-1758
In February 2017—about eight months after Mathis and
just weeks before the Eighth Circuit decided McArthur—
Franklin returned to the Minnesota sentencing court with a
pro se motion for § 2255 relief. Relying on Mathis, he sought
resentencing, arguing that his ACCA-enhanced sentence is
unlawful. His motion came almost three years after the
judgment in his case became final, well outside the one-year
window provided by § 2255(f)(1). The government predicta-
bly responded that the motion was untimely. It further
argued that Mathis did not trigger § 2255(f)(3), which restarts
the clock if the prisoner’s motion invokes a newly recog-
nized right and is filed within one year of “the date on which
the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Su-
preme Court and made retroactively applicable to cases on
collateral review.” Franklin accepted the government’s point
about untimeliness and moved to dismiss his § 2255 motion,
acknowledging that relief based on Mathis could come only
through § 2241. The Minnesota district judge accordingly
dismissed Franklin’s § 2255 motion without prejudice.
Three days later Franklin filed a pro se petition for habe-
as corpus under § 2241 in the Central District of Illinois, the
district where he was then confined. 3 See Webster v. Daniels,
784 F.3d 1123, 1144 (7th Cir. 2015) (en banc) (explaining that
§ 2241 petitions must be filed in the district of confinement).
The proceedings were stayed pending the Supreme Court’s
3 While this appeal has been pending, Franklin was transferred to the
federal prison in Oxford, Wisconsin. The change in Franklin’s custodian
does not affect our jurisdiction. See Harris v. Warden, 425 F.3d 386, 388
(7th Cir. 2005). We have substituted the warden at Oxford as the re-
spondent.
No. 19-1758 11
decision in United States v. Stitt, 139 S. Ct. 399 (2018), and the
judge in the meantime appointed the Federal Defender to
represent him.
Stitt did not affect Franklin’s case after all, so the pro-
ceedings resumed and the judge eventually denied relief,
holding that even without the Minnesota convictions, three
qualifying ACCA predicates remained: two Illinois convic-
tions for residential burglary and one for kidnapping. Our
precedent was clear at that time that the Illinois crime of
residential burglary qualified as an ACCA violent felony;
Eighth Circuit precedent was the same. See Dawkins v. United
States, 809 F.3d 953, 956 (7th Cir. 2016) (per curiam); United
States v. Maxwell, 363 F.3d 815, 821 (8th Cir. 2004). Alterna-
tively, the judge held that Franklin could not use § 2241
because he did not satisfy the strict requirements of
§ 2255(e)’s saving clause.
Franklin appealed, and the ground shifted again, knock-
ing out the Illinois burglary convictions as ACCA predicates.
At the time of Franklin’s offenses, the statute under which he
was convicted stated: “a person commits residential burgla-
ry [when he] knowingly and without authority enters the
dwelling place of another with the intent to commit therein a
felony or theft.” 720 ILL. COMP. STAT. 5/19-3(a) (1995). As
we’ve noted, when Franklin was sentenced in federal court
in 2014, Eighth Circuit precedent clearly held that this crime
categorically matched generic burglary. Maxwell, 363 F.3d at
821.
After he filed this appeal, however, a question arose in
our circuit about the meaning of “without authority” in the
Illinois residential-burglary statute. More specifically, in
United States v. Glispie, the defendant argued that under
12 No. 19-1758
Illinois’s limited-authority doctrine, a person can commit the
offense of residential burglary by exceeding the scope of an
otherwise lawful entry. 943 F.3d 358, 364–65 (7th Cir. 2019).
The limited-authority doctrine can be traced back to
People v. Weaver, 243 N.E.2d 245 (Ill. 1968). There the defend-
ant was convicted of burglary after he entered a public
laundromat with the intent to steal from vending machines.
The Illinois Supreme Court affirmed the conviction, describ-
ing the doctrine this way:
A criminal intent formulated after a lawful en-
try will not satisfy the statute. But authority to
enter a business building, or other building
open to the public, extends only to those who
enter with a purpose consistent with the reason
the building is open. An entry with intent to
commit a theft cannot be said to be within the
authority granted patrons of a laundromat.
Id. at 248 (citation omitted). “Weaver thus established that
one who enters a public building with the intent to commit a
crime automatically satisfies the unlawful entry requirement
of the Illinois burglary statute.” Glispie, 943 F.3d at 365.
When Glispie was first before this court, state law was
uncertain about whether the limited-authority doctrine
extended to the residential-burglary statute. 943 F.3d at 367–
68. If it did, then a defendant’s intent to commit a felony or
theft necessarily meant that his entry was without authority,
making an unlawful entry unnecessary. See id. at 369. That,
in turn, would make Illinois residential burglary broader
than Taylor’s generic burglary. Because of the ambiguity
about the doctrine’s reach, we certified to the Illinois
No. 19-1758 13
Supreme Court the question whether the limited-authority
doctrine applies to residential burglary. Id.
The court answered our certified question in the affirma-
tive, making clear that the limited-authority doctrine applies
to residential burglary. United States v. Glispie, 181 N.E.3d
719, 725 (Ill. 2020). Accordingly, we held that because the
Illinois residential-burglary statute is categorically broader
than generic burglary, a conviction for violating it cannot be
used to enhance a sentence under the ACCA. Glispie,
978 F.3d at 503.
With that, Franklin’s two Illinois burglary convictions
dropped out of his ACCA total, leaving him with only one
violent-felony predicate, not enough to support his ACCA-
enhanced sentence.
II. Discussion
As the foregoing discussion shows—and the government
now concedes—Franklin’s ACCA-enhanced sentence is
unlawful. That narrows the scope of this appeal to a proce-
dural question: is he eligible for § 2241 relief via § 2255(e) as
interpreted in Davenport?
Section 2255 ordinarily “provides the exclusive means for
a federal prisoner to collaterally attack his conviction or
sentence.” Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019).
As relevant here, since the enactment of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), collateral
review under § 2255 is subject to two key procedural rules.
Section 2255(f)(1) sets a one-year statute of limitations that
runs “from the latest of” one of four qualifying events,
including “the date on which the judgment of conviction
becomes final.” And a prisoner is limited to just one motion,
14 No. 19-1758
with a “second or successive motion” permitted only if a
court certifies that the motion contains either “newly discov-
ered evidence” or 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).
If a motion is blocked by the limits imposed by either sub-
section (f) or subsection (h), collateral relief in the sentencing
court is unavailable.
But the saving clause in § 2255(e) preserves a pathway for
traditional habeas review under § 2241 “in a narrow set of
circumstances.” Guenther, 997 F.3d at 737. The opening is
quite limited: the statute says that a prisoner’s § 2241 peti-
tion “shall not be entertained” unless § 2255 “is inadequate
or ineffective to test the legality of his detention.” § 2255(e).
In Davenport we addressed the meaning of the phrase “inad-
equate or ineffective,” focusing on “the essential function of
habeas corpus” and “whether it is impaired … by the limita-
tions on the use of the remedy provided in [§] 2255.”
147 F.3d at 609. We held that a federal prisoner’s access to
§ 2241 through the saving-clause gateway depends on
whether—given the limits on the § 2255 remedy—he had “a
reasonable opportunity to obtain a reliable judicial determi-
nation of the fundamental legality of his conviction and
sentence.” Id. The inquiry is largely procedural. To access
§ 2241, a prisoner must establish that “a structural problem
in § 2255 … foreclose[d] even one round of effective collat-
eral review, unrelated to [his] own mistakes.” Poe v. LaRiva,
834 F.3d 770, 772 (7th Cir. 2016) (quotation marks omitted).
Davenport involved consolidated appeals brought by two
§ 2241 petitioners, but only one was permitted to proceed.
Sherman Nichols was convicted of using a firearm in the
No. 19-1758 15
commission of a drug offense in violation of 18 U.S.C.
§ 924(c). After an unsuccessful appeal and a failed § 2255
motion for collateral relief, the Supreme Court interpreted
the term “use” in § 924(c) to require “more than a showing
of mere possession.” Bailey v. United States, 516 U.S. 137, 144
(1995), superseded by statute, Act of Nov. 13, 1998, Pub. L. No.
105-386, 112 Stat. 3469, as recognized in United States v.
O’Brien, 560 U.S. 218, 232–33 (2010). Bailey upended circuit
precedent to the contrary, meaning that Nichols was convict-
ed and sentenced for conduct that the law does not make
criminal. Davenport, 147 F.3d at 610. But he could not seek
relief under § 2255 based on Bailey because § 2255(h)(2)
permits second or successive motions only for new rules of
constitutional law; Bailey was a statutory-interpretation
decision. Id.
In those circumstances we held that § 2255 was inade-
quate or ineffective within the meaning of the saving clause.
Id. We explained that “[a] procedure for postconviction relief
can fairly be termed inadequate when it is so configured as
to deny a convicted defendant any opportunity for judicial
rectification” of a fundamental defect in his conviction or
sentence, such as “having been imprisoned for a nonexistent
offense.” Id. at 611. Nichols’s case fit the bill. Bailey postdated
his § 2255 motion, so he “could not use a first motion under
[§ 2255] to obtain relief on a basis not yet established by
law.” Id. at 610. And “[h]e could not use a second or other
successive motion” because Bailey, as a statutory decision,
did not bring his claim within the exceptions to successive
motions specified in § 2255(h)(2). Id.
Finally, it would have been futile in his first § 2255 mo-
tion for Nichols to press the interpretation that Bailey en-
16 No. 19-1758
dorsed because the law in our circuit (where he was convict-
ed) was “firmly against him.” Id. Doing so, we explained,
“would just clog the judicial pipes”; it would “require
defendants, on pain of forfeiting all right to benefit from
future changes in the law, to include challenges to settled
law in their briefs on appeal and in postconviction filings.”
Id.
For these reasons, we concluded in Davenport that “[a]
federal prisoner should be permitted to seek habeas corpus
only if he had no reasonable opportunity to obtain earlier
judicial correction of a fundamental defect in his conviction
or sentence because the law changed after his first [§] 2255
motion.” Id. at 611.
We recently synthesized Davenport’s requirements as fol-
lows:
To pursue relief under § 2241, a petitioner must
establish that “(1) the claim relies on a statuto-
ry interpretation case, not a constitutional case,
and thus could not have been invoked by a
successive § 2255 motion; (2) the petitioner
could not have invoked the decision in his first
§ 2255 motion and the decision applies retroac-
tively; and (3) the error is grave enough to be
deemed a miscarriage of justice.”
Chazen, 938 F.3d at 856 (quoting Beason, 926 F.3d at 935).
As we’ve also recently noted, the Davenport test “has its
complexities and raises some difficult questions that to date
remain unanswered”—notably, questions regarding the
precise requirements for the first two conditions, including
whether the triggering change in the law must come from
No. 19-1758 17
the Supreme Court or can be a circuit-level decision.
Guenther, 997 F.3d at 741 & n.3; see also Chazen, 938 F.3d at
863–66 (Barrett, J., concurring). This case does not require us
to answer these thorny questions. Assuming Franklin’s case
falls within our Davenport doctrine at all (more on that later),
Chazen and Guenther make clear that he satisfies all three of
its requirements.
Starting with the first, Franklin’s § 2241 petition “relies at
least in part on Mathis, a statutory-interpretation case that ‘is
“new” as a functional and practical matter’ because it ‘inject-
ed much-needed clarity and direction into the law’ regard-
ing the application of the categorical approach.” Guenther,
997 F.3d at 742 (quoting Chazen, 938 F.3d at 862). Mathis led
to McArthur and Crumble, which in turn led to Van Cannon.
See id. As things now stand, it’s clear that the Minnesota
crimes of second- and third-degree burglary cannot serve as
ACCA predicates because the statutes are indivisible and
categorically broader than generic burglary. Id.
It’s true that Franklin’s entitlement to relief on the merits
for the Mathis error requires the addition of Glispie, which
precluded the use of Illinois residential-burglary convictions
as ACCA predicates on a routine application of Taylor. But
Franklin need not show that Mathis is sufficient by itself to
render his sentence unlawful. Van Cannon, 890 F.3d at 661–
62. The Mathis error is undisputed, and the error is prejudi-
cial in Franklin’s case because Glispie eliminates two of the
three remaining ACCA predicates needed to support his
18 No. 19-1758
enhanced sentence. In that sense, his case falls comfortably
within our reasoning and holding in Van Cannon. 4
Because Franklin’s petition is based on Mathis, he like-
wise satisfies the second Davenport requirement in the same
manner as in Chazen and Guenther. Any attempt at collateral
review would have been futile until after Mathis because
Eighth Circuit precedent was squarely against him, foreclos-
ing relief. Guenther, 997 F.3d at 742. And here, as in Guenther
and Chazen, the government “does not dispute that Mathis
applies retroactively to cases on collateral review.” Id.; accord
Chazen, 938 F.3d at 862 (“It is only after Mathis—a case
decided after Chazen’s § 2255 petition that the government
concedes is retroactive—that courts, including our court and
the Eighth Circuit, have concluded that Minnesota burglary
is indivisible because it lists alternative means of committing
a single crime.”).
Finally, Franklin has established that the error is grave
enough to be deemed a miscarriage of justice. The govern-
ment concedes this point too, so we can be brief. A “‘funda-
mental sentencing defect’—including an erroneous ACCA-
enhanced sentence—amounts to a ‘miscarriage of justice.’”
Guenther, 997 F.3d at 742 (quoting Light v. Caraway, 761 F.3d
809, 813 (7th Cir. 2014)); see also Chazen, 938 F.3d at 856. In
light of the government’s concession, there’s no need to
decide whether the merits of Franklin’s habeas claim are
governed by the law of the Eighth Circuit (the circuit of
4 The government says that Van Cannon is distinguishable because it
concerned a § 2255 motion, not a habeas petition under § 2241. That
distinction is irrelevant. The way a court counts ACCA predicates does
not vary based on the vehicle that a petitioner uses for his collateral
attack.
No. 19-1758 19
conviction) or this court (the circuit of confinement). See
Guenther, 997 F.3d at 742 (explaining the “choice-of-law
conundrum”).
With all three requirements satisfied, we return to the
question whether Franklin’s petition falls within Davenport
in the first place. To date our Davenport cases have involved
prisoners for whom § 2255(h) and its limits on successive
motions created the operative structural problem that im-
peded collateral review—more specifically, the absence of an
exception in § 2255(h) for new statutory cases (like Bailey and
Mathis, for example). Recall, however, that Franklin filed his
first § 2255 motion after the Supreme Court decided Mathis.
The bar on successive motions thus did not stand in the way
of a Mathis-based claim. The obstacle for him was § 2255(f)’s
time bar and the inability to use Mathis to restart the one-
year clock under § 2255(f)(3). 5
We have not yet considered whether Davenport applies
where § 2255(f)’s time bar blocks a new statutory claim. The
government urges us to distinguish Chazen and Guenther on
that basis and reject Franklin’s § 2241 claim. We see things
differently. In Franklin’s circumstances, the effect of
§ 2255(f)’s time bar makes § 2255 “inadequate or ineffective”
in essentially the same manner as in Davenport, so our
reasoning there applies to the procedural question here. At
its core, the saving clause as construed in Davenport permits
5 See Hanson v. United States, 941 F.3d 874, 877 (7th Cir. 2019) (explaining
that the petitioner “failed to show that the Supreme Court in Mathis
intended to create a new rule upon which the statute of limitations may
run”); cf. United States v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022) (stating
in dicta that Mathis did not create a new rule that “extended the normal
one-year time limit of § 2255(f)(1)” by operation of § 2255(f)(3)).
20 No. 19-1758
a prisoner to use § 2241 where a structural feature of § 2255
deprived him of any opportunity to correct a fundamental
defect in his conviction or sentence. Davenport, 147 F.3d at
611. A prisoner is denied that opportunity when through no
fault of his own, he cannot present the proper interpretation
of the statute underlying his conviction or sentence in a
§ 2255 motion—first because circuit precedent was “firmly
against him” and then because the statute blocks him from
presenting the new statutory argument. Id. at 610–11.
Franklin confronted precisely those circumstances here.
Eighth Circuit precedent squarely supported his ACCA-
enhanced sentence until well after the § 2255(f)(1) statute of
limitations expired. A timely § 2255 thus would have been
futile. In his situation, § 2255 never gave him an opportunity
to correct a fundamental defect in his sentence. Mathis
changed Eighth Circuit law after his one-year time limit
expired but did not restart the limitations clock under
§ 2255(f)(3), leaving him no remedy in the sentencing court
to correct the Mathis error.
Accepting the government’s position here would create
arbitrary distinctions between prisoners with essentially
identical claims. Franklin would be barred from using
§ 2241—even though he satisfies all three Davenport re-
quirements—simply because he refrained from filing a
timely § 2255 motion that would have been frivolous under
then-existing Eighth Circuit law. Yet he would be permitted
to access § 2241 if he had filed a doomed § 2255 motion
within a year of when his judgment became final. The same
result would follow if he had filed multiple frivolous § 2255
motions thereafter, even though under earlier law repetitive
filings would have been considered possible abuse of the
No. 19-1758 21
habeas writ. Our precedent neither requires nor supports
creating such perverse incentives. A prisoner need not file a
futile § 2255 motion and “clog the judicial pipes” merely to
preserve the possibility of invoking new statutory rules in
the future under the Davenport doctrine. Id. at 610.
We acknowledge that Franklin’s case isn’t a perfect fit
with the interpretive rationale of Davenport. We have earlier
explained that Davenport was probably a response to the
problem that in drafting AEDPA’s exceptions to § 2255(h)’s
rule against successive motions, “Congress may have over-
looked the possibility that new and retroactive statutory
decisions … could support collateral review.” Unthank v. Jett,
549 F.3d 534, 536 (7th Cir. 2008) (quotation marks omitted);
see also Chazen, 938 F.3d at 863 (Barrett, J., concurring) (not-
ing the possible “congressional oversight” in § 2255(h)). That
rationale doesn’t transfer easily to the time limits in § 2255(f).
Even so, permitting Franklin to use § 2241 opens the door to
habeas review no wider than Davenport already has.
The common denominator in our Davenport caselaw is
that § 2255 isn’t inadequate or ineffective “absent a compel-
ling showing that it was impossible to use § 2255 to cure the
defect identified in the § 2241 petition.” Lee v. Watson,
964 F.3d 663, 666 (7th Cir. 2020) (quotation marks omitted).
We do not lessen that burden here. But Franklin’s claim is
not any less “impossible” simply because § 2255(f) alone—
rather than the combined effect of § 2255(h) and § 2255(f)—
bars relief.
III. Conclusion
Davenport is not without controversy, but it remains the
law of our circuit. See Webster, 784 F.3d at 1136. Its rationale
22 No. 19-1758
governs here, and Franklin has satisfied its three require-
ments. Accordingly, he is eligible to proceed under § 2241.
Because his ACCA-enhanced sentence is unlawful, we
REVERSE and REMAND with instructions to grant appropriate
habeas relief.