United States v. Rhodes

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 6, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6012
(D.C. No. 5:01-CR-00202-R-1)
JIMMY EUGENE RHODES, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, MURPHY and PHILLIPS, Circuit Judges.
_________________________________
Jimmy Eugene Rhodes was convicted of federal crimes in district court in
Oklahoma. A district court in Illinois granted his pro se application for a writ of
habeas corpus under 28 U.S.C. § 2241 and ordered that Rhodes be released. That
order also purported to vacate his sentence and order the Oklahoma district court to
resentence him. Rhodes then moved the Oklahoma district court to release him
pending his resentencing. The Oklahoma district court denied his motion for release,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
concluding that the Illinois district court lacked jurisdiction to grant his § 2241
application. It also declined to vacate his sentence and to resentence him, holding
that the Illinois district court lacked authority to order the Oklahoma district court to
do either. Rhodes has since been released from custody pursuant to the Illinois
district court’s § 2241 order. Appearing pro se, he appeals the portion of the order
refusing to vacate his sentence and resentence him. We affirm.
Background
1. Rhodes’ Conviction, Direct Appeal, and First § 2255 Motion
In 2002, Rhodes was convicted in the Western District of Oklahoma
(Oklahoma district court) of firearm and drug offenses, including two counts of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was
subject to a mandatory minimum fifteen-year sentence for the felon-in-possession
convictions under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
based on his having at least three prior state convictions that qualified as violent
felonies, one for shooting with intent to kill, and two for second-degree burglary, all
out of Oklahoma. The Oklahoma district court sentenced him to concurrent
260-month terms for the felon-in-possession counts and shorter concurrent terms on
the remaining convictions.
On direct appeal, Rhodes challenged his convictions but not his sentence. We
affirmed. United States v. Rhodes, 62 F. App’x 869, 876 (10th Cir. 2003) (Rhodes I).
Rhodes then filed his first 28 U.S.C. § 2255 motion. He alleged ineffective
assistance of counsel but again did not challenge his sentence. The Oklahoma district
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court denied the motion and we denied a certificate of appealability (COA). United
States v. Rhodes, 157 F. App’x 84, 89 (10th Cir. 2005) (Rhodes II).
2. Denial of Rhodes’ Authorized § 2255 Motion Based on Johnson
In 2016, we granted Rhodes authorization to file a second or successive § 2255
motion based on Johnson v. United States, 576 U.S. 591 (2015), in which the
Supreme Court held the definition of “violent felony” in the ACCA’s “residual
clause” was unconstitutionally vague such that enhancing a sentence based on that
clause violates a defendant’s right to due process, id. at 596, 606. Johnson did not
invalidate the remainder of the ACCA’s definition of violent felony, including its
“enumerated offense clause,” which defines violent felony as “burglary, arson, or
extortion, [or an offense that] involves [the] use of explosives,” 18 U.S.C.
§ 924(e)(2)(B)(ii). See Johnson, 576 U.S. at 606.
In his § 2255 motion, Rhodes maintained that his Oklahoma burglary
convictions did not qualify as violent felonies under the enumerated offense clause
because the elements of the state offense did not match the definition of generic
burglary in light of Mathis v. United States, 136 S. Ct. 2243, 2251-54 (2016)
(clarifying the approach for determining whether a prior conviction under a divisible
state statute categorically meets the ACCA’s definition of violent felony).
Proceeding from the premise that his burglary convictions were not violent felonies
under the enumerated offense clause, Rhodes claimed his sentence was illegally
enhanced based on the residual clause. The Oklahoma district court dismissed the
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motion as untimely, concluding that his argument relied on Mathis, not Johnson, and
a Mathis claim was untimely.
We granted a COA, determined that the motion was timely because it invoked
Johnson, but concluded that Rhodes’ Johnson claim failed because his sentence was
enhanced under the ACCA’s enumerated offense clause, not its invalidated residual
clause. United States v. Rhodes, 721 F. App’x 780, 782 (10th Cir. 2018) (Rhodes
III). We noted that when Rhodes was sentenced, we “had repeatedly held that
Oklahoma second degree burglary qualified as an enumerated offense if underlying
documents indicated that the defendant burgled a building.” Id. And because the
sentencing record established that “Rhodes was convicted of burgling homes,” we
concluded “there would have been little dispute at the time of sentencing that
Rhodes’ burglary convictions constituted enumerated offenses.” Id. (ellipsis and
internal quotation marks omitted); see United States v. Snyder, 871 F.3d 1122, 1129
(10th Cir. 2017) (explaining that “it may be possible to determine that a sentencing
court did not rely on the residual clause—even when the sentencing record alone is
unclear—by looking to the relevant background legal environment at the time of
sentencing” (emphasis and internal quotation marks omitted)). In so concluding, we
expressed no opinion about whether our prior cases holding that Oklahoma second-
degree burglary of a building qualified as an enumerated offense remain good law
following Mathis, because Mathis was decided after Rhodes’ sentencing hearing.
Rhodes III, 721 F. App’x at 782 & n.2; see Snyder, 871 F.3d at 1129 (explaining that
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“the relevant background legal environment” does not include “post-sentencing
decisions”).
3. Denial of Rhodes’ Motion for Authorization to File a Second or
Successive § 2255 Motion Based on Mathis
In 2019, Rhodes sought authorization from this court to file another successive
§ 2255 motion based, as pertinent here, on Mathis and United States v. Hamilton,
889 F.3d 688 (10th Cir. 2018), in which we held that Oklahoma second-degree
burglary does not meet the definition of generic burglary under Mathis and thus does
not qualify as a violent felony under the enumerated offense clause, see id. at 699.
We denied authorization because Mathis was “dictated by decades of precedent” and
was thus not a new rule, and Hamilton, a decision from this court not the Supreme
Court, does not qualify as a new rule of retroactively applicable law under
§ 2255(h)(2). In re Rhodes, No. 19-6144, Order at 5 (10th Cir. Oct. 9, 2019) (Rhodes
IV).
4. Illinois District Court Order Granting Rhodes’ § 2241 Application
While the COA proceeding in Rhodes IV was pending, Rhodes filed a § 2241
habeas application in the United States District Court for the Southern District of
Illinois (Illinois district court), where he was incarcerated. As in his 2016 § 2255
motion, Rhodes relied on Mathis to claim that his Oklahoma second-degree burglary
convictions are not violent felonies under the enumerated offense clause and that his
sentence was illegally enhanced under the residual clause.
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After we decided Rhodes IV, the Illinois district court concluded that Rhodes
could challenge his conviction and sentence under § 2241 because the remedy of
§ 2255 was inadequate or ineffective under Seventh Circuit precedent. The court
(Judge Yandle) then granted Rhodes’ § 2241 application, concluding that under
Mathis and Hamilton, his Oklahoma second-degree burglary convictions could not
support his ACCA enhancement and that he was “entitled to be resentenced free of
the [ACCA] designation.” R., Vol. 4 at 34. That order purported to vacate the
sentence imposed by the Oklahoma district court, and to order that court to
resentence Rhodes. Id.
5. Order Denying Motion for Immediate Release Pending Resentencing
Both parties filed motions in the Oklahoma district court addressing Judge
Yandle’s order: Rhodes moved for immediate release pending resentencing, and the
government moved to strike the order from the docket and, if necessary, reinstate the
original judgment and sentence. The Oklahoma district court denied both motions
and declined to vacate Rhodes’ sentence and resentence him. With respect to the
motion for immediate release pending resentencing, the court held that “Judge
Yandle lack[ed] the authority to order [the Oklahoma district court] to vacate
Mr. Rhodes’ sentence or his sentencing enhancement or to resentence him.” Id. at
90. Likewise, with respect to the government’s motion to strike Judge Yandle’s
order, the Oklahoma district court concluded it had no authority to strike an order of
another district court. After the Oklahoma district court entered that order, Rhodes
was released from custody pursuant to the Illinois district court’s order. He now
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appeals the portion of the Oklahoma district court’s order refusing to vacate his
sentence, which he has not fully served, and to resentence him.
Discussion
Despite this somewhat complicated procedural background, the only issue
before us is a straightforward jurisdictional one: did the Illinois district court have
authority in its § 2241 order to vacate the sentence imposed by the Oklahoma district
court and to order that court to resentence Rhodes? The answer is plainly no.
We review questions regarding a district court’s jurisdiction under § 2241 de
novo. Abernathy v. Wandes, 713 F.3d 538, 544, 557 (10th Cir. 2013). We apply the
same standard in reviewing a district court’s legal determination regarding its
authority to modify a criminal defendant’s sentence. United States v. Blackwell,
81 F.3d 945, 947 (10th Cir. 1996).
A § 2241 application “typically attacks the execution of a sentence rather than
its validity and must be filed in the district where the prisoner is confined.” Brace v.
United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (internal quotation marks
omitted). “A § 2255 motion, on the other hand, is generally the exclusive remedy for
a federal prisoner seeking to attack the legality of detention, and must be filed in the
district that imposed the sentence,” regardless of where he is incarcerated. Id.
(brackets and internal quotation marks omitted). Absent circumstances not present
here, a prisoner is entitled to only one opportunity to challenge the legality of his
sentence. See § 2255(h) (identifying circumstances in which a prisoner may seek
authorization to file a second or successive § 2255 motion); Prost v. Anderson,
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636 F.3d 578, 586 (10th Cir. 2011) (“[A] prisoner generally is entitled to only one
. . . opportunity to test the legality of his detention, in his initial § 2255 motion.”).
Consistent with that filing limitation, the district court in the jurisdiction where a
prisoner is incarcerated may not entertain a § 2241 habeas application challenging the
underlying conviction and sentence unless the prisoner establishes under § 2255(e)’s
savings clause that the remedy of a § 2255 motion “is inadequate or ineffective to test
the legality of his detention.” § 2255(e); see Abernathy, 713 F.3d at 557 (recognizing
that the limitation in the savings clause is jurisdictional).
In this circuit, “[t]he relevant metric or measure” of § 2255’s adequacy or
effectiveness “is whether a petitioner’s argument challenging the legality of his
detention could have been tested in an initial § 2255 motion. If the answer is yes,
then the petitioner may not resort to the savings clause and § 2241.” Prost, 636 F.3d
at 584. Because the text of § 2255(e) distinguishes between remedy and relief, our
test focuses on opportunity, not result: “it is the infirmity of the § 2255 remedy itself,
not the failure to use it or to prevail under it, that is determinative. To invoke the
savings clause, there must be something about the initial § 2255 procedure that itself
is inadequate or ineffective for testing a challenge to detention.” Prost, 636 F.3d at
589. We have rejected the notion that a defendant “should be excused for failing to
bring a novel argument for relief that the Supreme Court hadn’t yet approved” in his
first § 2255 motion, because that failure “doesn’t speak to the relevant question
whether § 2255 itself provided him with an adequate and effective remedial
mechanism for testing such an argument.” Id. (internal quotation marks omitted); see
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also id. at 586 (explaining that “if the § 2255 remedial mechanism could be deemed
‘inadequate or ineffective’ any time a petitioner is barred from raising a meritorious
second or successive challenge,” the filing limitation in § 2255(h) “would become a
nullity”).
Rhodes’ § 2241 application challenged the validity of his sentence, not its
execution. He sought release based on substantive law that post-dates the resolution
of his initial § 2255 motion—new law that he claims makes it clear that his
Oklahoma burglary convictions cannot support an enhanced sentence under the
enumerated offense clause. His claim was thus a § 2255 claim. But Rhodes did not
establish, nor could he, that “something about the initial § 2255 procedure [] itself
[was] inadequate or ineffective for testing” his claim, and the fact that his argument
would have been novel at that time does not mean he did not have the opportunity to
raise it. Prost, 636 F.3d at 589. Thus, had Rhodes been incarcerated in Oklahoma
and filed his § 2241 application in the Oklahoma district court, this court’s precedent
would have precluded relief.
This case is a perfect example of the practical problems district courts face in
trying to provide § 2255 relief under § 2241 when the habeas court is not the
sentencing court. We recognize that the Seventh Circuit’s savings clause test would
permit Rhodes to use § 2241 to obtain relief in these circumstances. See Chazen v.
Marske, 938 F.3d 851, 863 (7th Cir. 2019) (petitioner entitled to relief under § 2241
because challenging the use of his prior burglary convictions to enhance his sentence
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under the enumerated clause would have been futile before Mathis).1 And we
understand the quandary the Illinois district court faced given the conflict between its
circuit’s savings clause test and ours, let alone the fact that we have already
concluded that Rhodes’ sentence enhancement argument does not entitle him to file a
second or successive § 2255 motion, see Rhodes IV at 5.
But even if the Illinois district court properly exercised jurisdiction over
Rhodes’ § 2241 application under the Seventh Circuit’s savings clause test, it did not
have jurisdiction to vacate his sentence. While § 2241 gives a district judge the
“power to release” a defendant confined in its district, a habeas court “has no other
power,” and “cannot revise the [underlying] judgment.” Fay v. Noia, 372 U.S. 391,
430-31 (1963), abrogated on other grounds by Wainwright v. Sykes, 433 U.S. 72, 87-
88 (1977); see also In re Medley, 134 U.S. 160, 173-74 (1890) (recognizing that a
habeas court “cannot do anything else than discharge the prisoner from the wrongful
confinement”). Nor did it have jurisdiction to order the sentencing court to
resentence Rhodes. The respondent in a § 2241 proceeding is the petitioner’s jailer,
not the court that sentenced him, and the only available remedies in habeas are those
the jailer can effect, such as the prisoner’s release or a relaxation of the conditions of
his confinement. See Braden v. 30th Jud. Circuit Court of Ky., 410 U.S. 484, 494-95
1
The Seventh Circuit’s savings clause test permits a federal prisoner to raise
an alleged sentence-enhancement error under § 2241 if he “relies on a
statutory-interpretation case” and “a retroactive decision that he could not have
invoked in his first § 2255 motion,” and the sentence enhancement is “a grave
enough error to be deemed a miscarriage of justice.” Brown v. Caraway, 719 F.3d
583, 586-87 (7th Cir. 2013) (internal quotation marks omitted).
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(1973) (explaining that a writ of habeas corpus is directed to “the person who holds
[the prisoner] in what is alleged to be unlawful custody,” and provides relief by
compelling the jailer “to release his constraint”).
In any event, district courts in this circuit are bound by our decisions and those
of the United States Supreme Court—they are not bound by decisions of other district
courts, much less district courts in other circuits. See Camreta v. Greene, 563 U.S.
692, 709 n.7 (2011) (“A decision of a federal district court judge is not binding
precedent in either a different judicial district, the same judicial district, or even upon
the same judge in a different case.” (internal quotation marks omitted)). The
Oklahoma district court was thus bound by our decision in Rhodes IV that Rhodes is
not entitled to relief under § 2255 based on Mathis and Hamilton, not the Illinois
district court’s contrary decision. See Dobbs v. Anthem Blue Cross & Blue Shield,
600 F.3d 1275, 1279 (10th Cir. 2010) (explaining that if the circuit court decided an
issue, “the district court was bound by its determination under the law of the case
doctrine, and under the general rule that a district court is bound by decisions made
by its circuit court” (citation omitted)). Accordingly, not only did the Illinois district
court lack jurisdiction to vacate Rhodes’ sentence and order the Oklahoma district
court to resentence him, the Oklahoma district court lacked authority to follow the
Illinois district court’s order given our decision in Rhodes IV.
Conclusion
The district court’s order is affirmed. Rhodes’ motion to proceed on appeal
without prepayment of filing fees is granted, and he is reminded of his obligation to
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continue making partial payments toward his appellate filing fee until the entire
balance is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).
Entered for the Court
Gregory A. Phillips
Circuit Judge
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