Deandre Beason v. Matthew Marske , 926 F.3d 932 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3575
DEANDRE J. BEASON,
Petitioner‐Appellant,
v.
MATTHEW MARSKE,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17‐cv‐406 — William M. Conley, Judge.
____________________
ARGUED MAY 14, 2019 — DECIDED JUNE 24, 2019
____________________
Before FLAUM, KANNE, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. The Armed Career Criminal Act,
housed in § 924(e) of the Federal Criminal Code, mandates a
minimum 15‐year sentence for a felon who unlawfully pos‐
sesses a firearm and has three prior convictions for a “serious
drug offense” or “violent felony.” In 2009, Deandre Beason
pleaded guilty to being a felon in possession of a firearm and
was sentenced under the Act. Now, roughly a decade later,
the parties agree that under current law none of Beason’s
2 No. 18‐3575
three prior convictions count as either violent felonies or seri‐
ous drug offenses—meaning Beason no longer qualifies as an
armed career criminal.
But this observation only gets us so far, as this case turns
instead on whether Beason has available a procedural means
to secure resentencing. He did not prevail on challenging his
conviction and sentence on direct appeal. Nor did he succeed
in his pursuit of post‐conviction relief under 28 U.S.C. § 2255.
So he now turns to 28 U.S.C. § 2241. Whether he can use § 2241
to pursue what is often called traditional habeas relief turns
under our caselaw on whether the claims he now raises in his
current petition were foreclosed to him at the time of his ini‐
tial § 2255 motion. If so, the law would deem Beason’s prior
§ 2255 proceeding inadequate and thereby allow him to seek
resentencing through and pursuant to § 2241.
We conclude that at least one of Beason’s grounds for re‐
lief—pertaining to two of his three prior convictions—was
foreclosed to him at the time of his § 2255 motion. And, be‐
cause Beason is correct that those two offenses cannot serve
as qualifying offenses, he no longer has the three offenses
qualifying him as an armed career criminal. While the remain‐
der of the opinion travels the procedural and legal maze to
this conclusion, the upshot is that we reverse and remand for
the petition to be granted and Beason to be resentenced.
I
Following his 2009 guilty plea to being a felon in posses‐
sion of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2), Beason proceeded to sentencing. He received the 15‐
year mandatory minimum required by Congress in the
Armed Career Criminal Act. In imposing this sentence, the
No. 18‐3575 3
district court determined that Beason’s juvenile adjudication
for armed robbery under Wisconsin law and his two Wiscon‐
sin drug offenses meant that he had the necessary three prior
convictions for either a “serious drug offense” or a “violent
felony” to qualify as an armed career criminal.
The sentencing court determined that Beason’s juvenile
conviction for armed robbery was a qualifying violent felony.
Under the Armed Career Criminal Act, a juvenile adjudica‐
tion counts as a “violent felony” if the same offense would be
a violent felony if committed by an adult and the offense in‐
volves “the use or carrying of a firearm, knife, or destructive
device.” 18 U.S.C. § 924(e)(2)(B). The sentencing court also
found that Beason’s two Wisconsin drug offenses, which car‐
ried maximum sentences of 12.5 and ten years, qualified as
“serious drug offenses[s].” Under the Act, a “serious drug of‐
fense” includes state drug offenses “for which a maximum
term of imprisonment of ten years or more is prescribed by
law.” 18 U.S.C. § 924(e)(2)(A)(ii). At sentencing, Beason ob‐
jected to the use of his drug offenses as qualifying offenses but
made no similar argument as to the use of his juvenile armed
robbery offense.
On direct appeal in this court, Beason’s counsel submitted
an Anders brief, explaining that he could not identify any non‐
frivolous issues to pursue on appeal. His counsel consid‐
ered—but rejected—any possible attack on the sentencing
court’s conclusion that Beason’s three prior convictions qual‐
ified him as an armed career criminal.
We agreed and dismissed Beason’s appeal. See United
States v. Beason, 493 F. App’x 747, 750 (7th Cir. 2012). First, as
to Beason’s drug offenses, we rejected the line of argument
that Beason had advanced at sentencing that one of his drug
4 No. 18‐3575
convictions—the less serious of the two—did not qualify as a
“serious drug offense” because it carried a maximum penalty
of ten years as opposed to the “ten years or more” required by
the Armed Career Criminal Act. Id. at 748 (quoting 18 U.S.C.
§ 924(e)(2)(A)). It was enough, we concluded, that the offense
carried a maximum penalty of at least ten years. See id. We
therefore agreed with Beason’s counsel that it would be “friv‐
olous” to contend on appeal that his prior drug offenses car‐
ried sentences too short to qualify as serious drug offenses. Id.
We then considered whether Beason’s juvenile adjudica‐
tion for armed robbery qualified as a “violent felony” within
the meaning of § 924(e). See id. at 749. We saw this as a closer
call because armed robbery in Wisconsin could be committed
without a gun, knife, or explosive, as required to render a ju‐
venile offense a violent felony under the Act. See id. at 750.
But because Beason had not objected at sentencing to the use
of his juvenile adjudication as a qualifying offense for armed
career criminal purposes, we applied plain error review and
declined to vacate the 15‐year mandatory minimum sentence.
See id.
Having no success on direct appeal, Beason then pursued
post‐conviction relief. In 2013 he invoked 28 U.S.C. § 2255 and
challenged his juvenile adjudication for armed robbery as a
qualifying violent felony. In his § 2255 motion, however,
Beason made no arguments about the characterization of his
prior drug offenses as serious drug offenses. The district court
denied relief. Rather than confine itself to the Wisconsin
armed robbery statute, the court reviewed the juvenile peti‐
tion from Beason’s juvenile adjudication and determined the
offense conduct entailed Beason participating in a robbery
No. 18‐3575 5
involving a gun and thereby committing a “violent felony”
within the meaning of the Armed Career Criminal Act.
Four years later, and having witnessed certain intervening
changes in the law, Beason again pursued post‐conviction re‐
lief, this time by filing a petition under 28 U.S.C. § 2241. He
contended that recent changes in law interpreting the Armed
Career Criminal Act demonstrated that none of his three prior
crimes counted as qualifying offenses. First, relying on our
opinion in United States v. Spencer, 739 F.3d 1027 (7th Cir.
2014), Beason argued that neither of his two Wisconsin drug
offenses carried a sentence long enough to qualify as a “seri‐
ous drug offense” under the Act. Next, relying on the Su‐
preme Court’s 2016 decision in Mathis v. United States, 136 S.
Ct. 2243, he argued that his prior juvenile adjudication for
armed robbery could not count as a “violent felony” under
the Act.
In the district court and now on appeal, everyone agrees
that Beason is right on the merits. Current caselaw makes
clear that neither Beason’s drug offenses nor his juvenile ad‐
judication for armed robbery can be used to classify him as an
armed career criminal.
But that is not the end of the matter. The question is
whether Beason, having already availed himself of a collateral
attack under § 2255, can now seek relief under § 2241, the tra‐
ditional habeas remedy. Section 2255 contains what the law
refers to as a “savings clause”—a provision that, as its name
implies, preserves and allows the pursuit of habeas corpus re‐
lief if the petitioner satisfies particular conditions. The district
court denied relief, concluding that the savings clause was not
available to Beason because he could have raised the exact
6 No. 18‐3575
two arguments he now pursues under § 2241 in his first col‐
lateral attack under § 2255.
II
As a general matter, § 2255 provides the exclusive means
for a federal prisoner to collaterally attack his conviction or
sentence. But the savings clause in § 2255(e) preserves and au‐
thorizes access to traditional habeas corpus relief under 28
U.S.C. § 2241 if the remedy available under § 2255 was “inad‐
equate or ineffective to test the legality of his detention.” Our
decision in In re Davenport, 147 F.3d 605 (7th Cir. 1998) exam‐
ined the scope of this provision. There we determined that
whether § 2255 was inadequate or ineffective depends on
whether a proceeding under that section afforded the peti‐
tioner “a reasonable opportunity to obtain a reliable judicial
determination of the fundamental legality of his conviction
and sentence.” Id. at 609; see also Webster v. Daniels, 784 F.3d
1123, 1136 (7th Cir. 2015) (en banc) (reinforcing Davenport as
the law of the circuit and articulating the same point). In con‐
sidering Beason’s appeal, we accept Davenport as the law of
this circuit, as we must.
In Davenport’s wake, we have developed a three‐part test
implementing Davenport’s holding. See Montana v. Cross, 829
F.3d 775, 783 (7th Cir. 2016). A petitioner who seeks to satisfy
§ 2255(e)’s savings clause and thereby pursue relief under
§ 2241 must establish that (1) the claim relies on a statutory
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 retroactively; and (3)
the error is grave enough to be deemed a miscarriage of jus‐
tice. See id.
No. 18‐3575 7
The government agrees with Beason that he meets the first
and third requirements. Notably, the government conceded
below—and does not argue to the contrary on appeal—that a
circuit court statutory interpretation case like Spencer could
satisfy the first prong of the savings clause test. This position
finds some support in our caselaw. See Webster, 784 F.3d at
1136 (noting the differing emphases in our caselaw interpret‐
ing Davenport and concluding that “[a]ll of these decisions
hold, nevertheless, that there must be some kind of structural
problem with section 2255 before section 2241 becomes avail‐
able”); Morales v. Bezy, 499 F.3d 668, 672–73 (7th Cir. 2007) (in‐
dicating that circuit precedent could provide a basis for relief
under § 2241). Moreover, we can, and do, accept the govern‐
ment’s concession on this point. See e.g., Prevatte v. Merlak, 865
F.3d 894, 898, 901 (7th Cir. 2017) (accepting the government’s
concession on an element of the savings clause test and ex‐
plaining that §§ 2241 and 2255 address remedies, not jurisdic‐
tion).
We therefore proceed to the only requirement of the sav‐
ings clause test that is disputed on appeal—whether Beason
was foreclosed in his prior § 2255 proceeding from invoking
the arguments he now raises to challenge his sentence as an
armed career criminal. If the arguments he presents now were
available to him at the time of his § 2255 proceeding, then the
§ 2255 proceeding was adequate and he cannot proceed any
further. But if it “would have been futile” for Beason to raise
these arguments in his § 2255 motion because the “law was
squarely against him,” then the savings clause applies and
Beason may proceed and pursue resentencing under § 2241.
Webster, 784 F.3d at 1136.
8 No. 18‐3575
A
Beason first argues that neither of his two prior drug con‐
victions qualify as a “serious drug offense” in light of our de‐
cision in Spencer. Those convictions were Class F and G felo‐
nies under Wisconsin law and carried maximum sentences of
12.5 years (Class F) and ten years (Class G). See Wis. Stat.
§§ 939.50(3)(f); 939.50(3)(g). But Wisconsin law also makes
plain that sentences for felonies committed after the year 2000
(as Beason’s were) must be bifurcated: they must be broken
down into a term of confinement followed by a term of ex‐
tended supervision. Wis. Stat. §§ 973.01(1)–(2). And the term
of confinement allowed for Class F and G felonies is lower
than the total maximum sentence—seven years and six
months for a Class F felony and five years for a Class G felony.
See Wis. Stat. §§ 973.01(2)(b)(6m); 973.01(2)(b)(7).
We addressed this precise question in Spencer, another
Armed Career Criminal Act case. See 739 F.3d at 1028. There
we analyzed the bifurcated nature of felony sentences under
Wisconsin law and held that only the term of initial confine‐
ment—and not the term of extended supervision—counted
towards the statute’s threshold of ten‐years’ imprisonment
for an offense to qualify as a “serious drug offense.” See id. at
1032. A Class F felony committed in Wisconsin in 2000 or later,
which carries a maximum term of initial confinement of seven
years and six months, therefore did not qualify as a “serious
drug offense.” See id.
Beason’s § 2241 petition relied on Spencer to argue he was
entitled to resentencing. Beason argued that neither of his two
Wisconsin drug convictions qualified as serious drug offenses
under the Armed Career Criminal Act and that this position
had been foreclosed to him at the time of his § 2255 motion.
No. 18‐3575 9
The parties agree on the first point: applying Spencer,
Beason’s prior drug convictions under Wisconsin law do not
meet the Armed Career Criminal Act’s express ten‐year
threshold required for “serious drug offenses.” We, too, agree,
as even Beason’s more‐serious drug conviction (the Class F
felony) carries a maximum term of initial confinement of
seven years and six months, well below the ten‐year thresh‐
old.
The harder question, though, is whether it “would have
been futile” for Beason to raise this claim in his original § 2255
motion because “the law was squarely against him.” Montana,
829 F.3d at 784 (quoting Webster, 784 F.3d at 1136). We need to
ask and resolve that question because doing so tells us
whether Beason satisfies the requirements of the savings
clause and thereby can proceed forward under § 2241.
In confronting the same question, the district court con‐
cluded that the law was not squarely against Beason on this
point at the time of his § 2255 proceeding, making the savings
clause and relief under § 2241 unavailable to him. Beason did
not need Spencer, the district court reasoned, to argue that his
prior Wisconsin drug convictions carried sentences too short
to qualify as serious drug offenses under the Armed Career
Criminal Act. At an even more detailed level, the district court
concluded that Beason had failed either to “explain[] why a
Spencer‐type challenge to the inclusion of his drug offense
would have failed in 2013 even at the time he filed his first
petition” or to “cite any authority suggesting that he was ‘ac‐
tually foreclosed’” from making the argument.
We see the law the other way, in no small part because of
our rejection of the argument in Beason’s own case. That re‐
jection came in Beason’s 2012 direct appeal. There we
10 No. 18‐3575
considered whether Beason could challenge the use of his two
Wisconsin drug convictions as qualifying offenses under the
Armed Career Criminal Act on the basis that the term of im‐
prisonment under Wisconsin law was not long enough. Be‐
cause the maximum penalty faced by Beason for even the less‐
serious felony was ten years, we rejected the argument and
indeed deemed it “frivolous.” To be sure, the argument we
considered on direct appeal was a bit different than the one
Beason raises here: we concentrated on the total maximum
penalty Beason faced and did not address the bifurcated na‐
ture of a sentence imposed for a Wisconsin felony. But we
nonetheless saw no merit in a contention that Beason’s drug
convictions failed to carry long enough maximum sentences
to qualify as serious drug offenses under the Armed Career
Criminal Act.
In these circumstances, our conclusion—relating directly
as it did to the length of the sentence for a Wisconsin felony—
had a clear consequence. Under the law of the case doctrine,
Beason was prohibited from “relitigat[ing] in a collateral pro‐
ceeding an issue that was decided on his direct appeal.” White
v. United States, 371 F.3d 900, 902 (7th Cir. 2004). As a practical
and legal matter, then, Beason needed a superseding develop‐
ment—like Spencer—to be able to advance his argument that
his two drug convictions carried insufficiently long sentences
to count as qualifying offenses under the Armed Career Crim‐
inal Act.
B
The government appears to recognize that the argument
was foreclosed to Beason at the time he filed his § 2255 motion
in 2013. But that acknowledgment does not lead the govern‐
ment to concede that Beason is entitled to be resentenced. It
No. 18‐3575 11
argues instead that he could have challenged the use of his
drug convictions as qualifying offenses as soon as we decided
Spencer—when Beason’s § 2255 motion was still pending. The
way for Beason to have done so, the government urges, was
by amending his § 2255 motion and seeking relief on the basis
of Spencer, not by waiting three years and seeking relief under
§ 2241.
Answering the government’s objection requires remem‐
bering how we got here. Recall that we decided Spencer in
2014 after Beason’s § 2255 proceedings were already under‐
way. Even more specifically, when we issued our opinion in
Spencer, Beason had filed his § 2255 motion and was awaiting
a decision by the district court. Beason, however, did not at‐
tempt to inject into his § 2255 proceeding any argument about
the length of his drug offenses based on Spencer. It was only
after the district court denied his § 2255 motion that Beason,
as part of his renewed effort to challenge being sentenced as
an armed career criminal, invoked § 2241 and relied expressly
on Spencer as his basis for relief.
This timeline leads the government to argue that Beason
should have reacted to our deciding Spencer when we did by
seeking to amend his then‐pending § 2255 motion. In the gov‐
ernment’s view, given this ability to amend under the liberal
standard of Federal Rule of Civil Procedure 15, Beason’s Spen‐
cer‐based argument was indeed available to him during his
§ 2255 proceeding.
We cannot agree. We decided Spencer at a time § 2255(f)’s
one‐year limitations period had already expired for Beason.
Amending his § 2255 motion, therefore, would have been
available to Beason only if his Spencer‐based claim related
back to the claim for relief asserted in his § 2255 motion—that
12 No. 18‐3575
his juvenile adjudication for armed robbery did not count as
a violent felony under the Armed Career Criminal Act. On
this point, however, the Supreme Court has explained that an
amended petition “does not relate back (and thereby escape
AEDPA’s one‐year time limit) when it asserts a new ground
for relief supported by facts that differ in both time and type
from those the original pleading set forth.” Mayle v. Felix, 545
U.S. 644, 650 (2005).
In Felix, the Supreme Court emphasized that an amend‐
ment does not relate back merely because it “relate[s] to the
same trial, conviction, or sentence as a timely filed claim.” Id.
at 662. There the state habeas petitioner’s original petition as‐
serted a Sixth Amendment claim based on the admission of
videotaped testimony at his trial, while his amended peti‐
tion—filed after the one‐year limitations period had ex‐
pired—asserted a Fifth Amendment claim based on the ad‐
mission of his pretrial statements to the police. Id. at 650–52.
The Court recognized that both claims related to errors at the
petitioner’s trial, and more specifically involved “the admis‐
sion of out‐of‐court statements during the prosecutor’s case
in chief,” but nevertheless concluded that the later‐asserted
claim did not relate back to the first claim. Id. at 650. Because
the events underlying the later‐added claim were separate in
both “time and type” from the originally raised events, the
original and newly asserted claims lacked a “common core of
operative facts.” Id. at 657, 664.
The Supreme Court’s teachings in Felix guide our assess‐
ment of Beason’s claims here. What Beason’s two claims have
in common is that they both assert that the sentencing court
committed legal error in sentencing him to a mandatory 15‐
year term of imprisonment as an armed career criminal. But
No. 18‐3575 13
the similarities end there. The claim Beason presented in his
§ 2255 motion turned on whether his juvenile adjudication for
armed robbery should have been considered a “violent fel‐
ony” within the meaning of § 924(e) given that the Wisconsin
armed robbery statute does not categorically involve a gun,
knife, or destructive device. But the Spencer‐based claim
Beason seeks to pursue under § 2241 is different: the claim
Beason now advances hinges on the bifurcated penalty struc‐
ture imposed for Wisconsin felonies and whether, in light of
that structure, his prior drug convictions were for offenses
that carried sufficiently long sentences to be considered seri‐
ous drug offenses under the Armed Career Criminal Act.
All of this leads us to agree with Beason that the claim he
asserts now regarding his prior drug offenses and the claim
asserted in his § 2255 motion regarding an altogether different
qualifying offense lack a unifying “core of operative facts.”
Felix, 545 U.S. at 664. Put differently, Rule 15’s relation‐back
provision did not provide Beason an avenue to press a Spencer
claim in his § 2255 proceeding.
C
In these circumstances, then, we conclude that Beason was
foreclosed from arguing that his two Wisconsin drug convic‐
tions did not count as qualifying offenses at the time of his
§ 2255 proceeding. The savings clause in § 2255(e) is thus
available to Beason, allowing him to seek relief under § 2241.
And in light of Spencer, Beason’s two Wisconsin drug convic‐
tions are not qualifying offenses under § 924(e).
We can stop there, as this conclusion alone entitles Beason
to resentencing. Section 2241 authorizes relief from “funda‐
mental sentencing defect[s],” like erroneously sentencing a
14 No. 18‐3575
defendant as an armed career criminal. See Light v. Caraway,
761 F.3d 809, 813 (7th Cir. 2014) (quoting Brown v. Caraway,
719 F.3d 583, 587 (7th Cir. 2013)). Without the two Wisconsin
drug convictions, Beason no longer has the three qualifying
offenses necessary to be considered an armed career criminal
under the Act. We need not go further and decide whether
§ 2241 is available for Beason to challenge the use of his juve‐
nile adjudication for armed robbery as a qualifying offense.
No matter how we answered that question, Beason would be
entitled to resentencing.
Accordingly, we REVERSE the district court’s judgment
and REMAND with instructions to grant the petition to au‐
thorize resentencing.