Michael Gamboa v. Charles Daniels

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1093
MICHAEL GERALD GAMBOA,
Petitioner-Appellant,
v.
CHARLES DANIELS *, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 17-cv-1346 — James E. Shadid, Judge.
____________________
ARGUED NOVEMBER 30, 2021 — DECIDED FEBRUARY 14, 2022
____________________
Before KANNE, WOOD, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. In 2003, a federal jury in North Da-
kota convicted Michael Gamboa of seven counts of drug and
firearm crimes. At sentencing, the district court found that
Gamboa had two or more prior convictions for felony drug
offenses, which meant he was subject to a mandatory term of
*We substitute Charles Daniels, Warden of USP Beaumont, Texas, as the
respondent. Fed. R. App. P. 23(a).
2 No. 20-1093
life imprisonment without release under 21 U.S.C.
§ 841(b)(1)(A)(viii) on two of the counts. After an unsuccessful
direct appeal and multiple 28 U.S.C. § 2255 motions and 28
U.S.C. § 2241 petitions, Gamboa again seeks a writ of habeas
corpus under § 2241. He argues that, under Mathis v. United
States, 136 S. Ct. 2243 (2016), his prior state drug convictions
do not constitute felony drug offenses for the purposes of the
sentencing enhancement under § 841(b)(1)(A), as defined in
21 U.S.C. § 802(44). The district court denied habeas relief be-
cause Gamboa had not shown that his claim was previously
foreclosed at the time of his initial § 2255 motion. We affirm.
I. BACKGROUND
A. Gamboa’s Sentencing and Direct Appeal
In 2003, a jury in the District of North Dakota found Gam-
boa guilty on all counts of a seven-count indictment for of-
fenses involving firearms, narcotics possession, and conspir-
acy to possess with the intent to distribute methamphetamine.
Relevant here are Counts 1 and 2: conspiracy to possess with
intent to distribute methamphetamine and aiding and abet-
ting in violation of 21 U.S.C. § 846, as defined under 21 U.S.C.
§ 841(a)(1), and 18 U.S.C. § 2 (Count 1); and possession of
methamphetamine with intent to distribute and aiding and
abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(Count 2).
Before trial, the government filed its notice of prior convic-
tions under 21 U.S.C. § 851(a). The notice alleged that Gamboa
had three prior convictions for felony drug offenses: (1) a fel-
ony conviction for a drug-distribution conspiracy occurring
between September 1994 and November 1995, involving co-
caine, methamphetamine, and/or marijuana, entered on
No. 20-1093 3
October 11, 1996, in Polk County District Court, Minnesota, in
violation of Minn. Stat. § 152.096, subdiv. 1 (1989); (2) a felony
conviction for a controlled-substance offense in the fifth de-
gree, possession of a mixture containing cocaine occurring on
or about September 13, 1995, entered on October 11, 1996, in
Polk County District Court, Minnesota, in violation of Minn.
Stat. § 152.025, subdiv. 2(1) (1995); and (3) a felony conviction
for delivery of marijuana occurring on or about November 27,
1995, entered in Grand Forks County District Court, North
Dakota, on October 23, 1996, in violation of N.D. Cent. Code,
§ 19-03.1-23(1)(b) (1995).
At sentencing, Gamboa argued that his prior state offenses
should not count as separate predicate felony convictions.
However, the “court made specific findings that the North
Dakota conviction for the delivery of marijuana in Grand
Forks County and the drug conspiracy conviction in Polk
County, Minnesota, were both separate predicate felony con-
victions for the purpose of enhancing the sentences on Counts
One and Two.” United States v. Gamboa, 439 F.3d 796, 813 (8th
Cir. 2006). The § 841 enhancement, at the time, increased the
statutory maximum sentence to life imprisonment without re-
lease. See 21 U.S.C. § 841(b)(1)(A)(viii). The district court sen-
tenced Gamboa to concurrent terms of life imprisonment on
Counts 1 and 2.
On direct appeal, the Eighth Circuit affirmed Gamboa’s
conviction and sentence on Counts 1 and 2. The Supreme
Court later denied Gamboa’s petition for a writ of certiorari.
Gamboa v. United States, 549 U.S. 1042 (2006).
4 No. 20-1093
B. Gamboa’s § 2255 Motions and Previous § 2241 Petitions
On November 13, 2007, Gamboa filed a motion to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255 in the
District of North Dakota. The district court dismissed his
§ 2255 motion with prejudice and the Eighth Circuit declined
to issue a certificate of appealability.
Gamboa has had a lengthy post-conviction history. See,
e.g., Gamboa v. United States, No. 13–2674 (8th Cir. Oct. 20,
2013) (affirming dismissal of successive § 2255 motion
brought without authorization); Gamboa v. United States, No.
12–3864 (8th Cir. Mar. 28, 2013) (denying application for suc-
cessive § 2255 motion); Gamboa v. Stine, No. 7-cv-00002, 2007
WL 38373 (E.D. Ky. Jan. 5, 2007) (denying § 2241 petition);
Gamboa v. Warden, FCC Coleman, No. 11-cv-00202 (M.D. Fla.
May 20, 2011) (dismissing § 2241 petition); Gamboa v. Krueger,
668 F. App’x 654 (7th Cir. 2016) (affirming dismissal of § 2241
petition). But we need not discuss the details of his numerous
motions and petitions for post-conviction relief because they
are all unrelated to the issues before us.
C. Gamboa’s New § 2241 Petition
In 2016, the Supreme Court decided Mathis, which nar-
rowed the range of state statutes that qualify as violent-felony
predicates under the Armed Career Criminal Act. After
Mathis was decided, Gamboa again pursued post-conviction
relief under § 2241 in the Central District of Illinois, where he
was confined at the time.
Relying on Mathis, Gamboa argued that the state drug
statutes used to enhance his sentence are overbroad and,
therefore, do not qualify as predicate felony drug offenses
within the meaning of 21 U.S.C. § 802(44). The government
No. 20-1093 5
argued that Gamboa was not previously foreclosed from
bringing a Mathis-style argument based on Taylor v. United
States, 495 U.S. 575 (1990), which held that a sentencing court
must generally adopt a formal categorical approach in apply-
ing the sentencing enhancement provision of the Armed Ca-
reer Criminal Act, looking only to the fact of conviction and
the statutory definition of the predicate offense rather than to
the particular underlying facts.
Gamboa responded by contending that his argument had
indeed been foreclosed prior to Mathis because Eighth Circuit
precedent interpreting Taylor—United States v. Payton, 918
F.2d 54 (8th Cir. 1990), and United States v. Cornelius, 931 F.2d
490, 494 (8th Cir. 1991)—permitted all alternatively phrased
overbroad statutes to be treated as per se divisible. The district
court denied Gamboa relief under § 2241 because it found that
he had not identified Eighth Circuit precedent that broadly
foreclosed any argument that an alternatively phrased statute
could be indivisible at the time of his direct appeal and initial
§ 2255 motion, nor any other case law that would have fore-
closed his claim.
Gamboa now appeals.
II. ANALYSIS
A. Appellate Jurisdiction
We start with the preliminary issue we asked the parties
to address. On February 7, 2020, we authorized Gamboa’s
transfer to a federal facility in Texas. We asked the parties to
address the effect on this appeal, if any, of his transfer to the
Texas facility. Both parties agree that we retain jurisdiction
over this appeal despite Gamboa’s transfer to a facility in an-
other jurisdiction. So do we.
6 No. 20-1093
“Writs of habeas corpus may be granted by the Supreme
Court, any justice thereof, the district courts and any circuit
judge within their respective jurisdictions.” 28 U.S.C.
§ 2241(a). A court “may decline to entertain an application for
a writ of habeas corpus and may transfer the application for
hearing and determination to the district court having juris-
diction to entertain it.” Id. § 2241(b). “In accord with the stat-
utory language … the default rule is that the proper respond-
ent is the warden of the facility where the prisoner is being
held … .” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (citing
Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996)). But “when
the Government moves a habeas petitioner after []he properly
files a petition naming h[is] immediate custodian, the District
Court retains jurisdiction and may direct the writ to any re-
spondent within its jurisdiction who has legal authority to ef-
fectuate the prisoner's release.” Id. at 441; see also Ex Parte
Endo, 323 U.S. 283, 306–07 (1944).
We retain jurisdiction to hear Gamboa’s appeal. Gamboa
filed his petition in the Central District of Illinois while incar-
cerated in that district, and he was still located there when the
district court entered judgment on July 31, 2019. Gamboa’s
proper filing of his § 2241 petition in the district where he was
incarcerated at the time vests us with jurisdiction over Gam-
boa’s appeal. See In re Hall, 988 F.3d 376, 378 (7th Cir. 2021)
(issuing a writ of mandamus to the district court directing it
to rescind its transfer order and return the case to the South-
ern District of Indiana, where petitioner was incarcerated
when he filed his § 2241 petition).
B. Gamboa’s § 2241 Petition
With jurisdiction established, we can now address Gam-
boa’s appeal. Gamboa appeals from the district court’s denial
No. 20-1093 7
of his petition for habeas corpus relief under 28 U.S.C. § 2241.
He argues that, given recent changes in our application of the
categorical approach, under Mathis, his prior Minnesota and
North Dakota drug convictions do not qualify as predicate
felonies under the federal statutes that determined his sen-
tence.
1. Background on the Categorical Approach
Section 841 requires an increase in the mandatory mini-
mum sentence for any defendant convicted under the statute
“after a prior conviction for a serious drug felony or serious
violent felony has become final.” 21 U.S.C. § 841(b)(1)(A)(viii).
Section 802(44) defines “felony drug offense” as “an offense
that is punishable by imprisonment for more than one year
under any law of the United States or of a State or foreign
country that prohibits or restricts conduct relating to narcotic
drugs, marihuana, anabolic steroids, or depressant or stimu-
lant substances.”
We apply the Taylor categorical approach to determine
whether a prior state conviction is a “felony drug offense” un-
der federal law. See United States v. Elder, 900 F.3d 491, 497–
501 (7th Cir. 2018). “Under the categorical approach, courts
look solely to whether the elements of the crime of conviction
match the elements of the federal recidivism statute.” United
States v. Ruth, 966 F.3d 642, 646 (7th Cir. 2020) (citing Elder,
900 F.3d at 501). “If, and only if, the elements of the state law
mirror or are narrower than the federal statute can the prior
conviction qualify as a predicate felony drug offense.” Id.
(quoting United States v. De La Torre, 940 F.3d 938, 948 (7th Cir.
2019)); see also Taylor, 495 U.S. at 602.
8 No. 20-1093
In Shular v. United States, the Supreme Court clarified that
there are two categorical methodologies depending on the
statute at issue. 140 S. Ct. 779, 783 (2020). We explained the
two methodologies in Ruth:
In the first categorical methodology, some statutes
require “the court to come up with a ‘generic’ ver-
sion of a crime—that is, the elements of ‘the offense
as commonly understood.’” Id. (quoting Mathis v.
United States, 136 S. Ct. 2243, 2247 (2016)). We will
refer to this first method as the generic-offense
method. The archetypal example is Taylor itself,
which confronted the Armed Career Criminal Act’s
“unadorned reference to ‘burglary’” and required
the Court to “identif[y] the elements of ‘generic bur-
glary’ based on the ‘sense in which the term is now
used in the criminal codes of most States.’” Id. (quot-
ing Taylor, 495 U.S. at 598–99). The Court then
matched the elements of the offense of conviction
against those of the generic crime. Id. The second cat-
egorical-approach method, though, concerns stat-
utes that do not reference a certain offense, but ra-
ther “some other criterion” as the measure for prior
convictions. Id. The example given for this second
methodology was where an immigration statute as-
signed consequences for a prior conviction for an of-
fense that “involves fraud or deceit,” and the Court
simply looked to whether the prior offense’s ele-
ments “necessarily entail fraudulent or deceitful
conduct” as the appropriate measure. Id. (quoting Ka-
washima v. Holder, 565 U.S. 478, 483–85 (2012)). We
will call this second method the conduct-based
method.
Ruth, 966 F.3d at 646 (alteration in original). Accordingly, we
held in Ruth that the conduct-based method applies to
No. 20-1093 9
determining whether a state offense is a “serious drug of-
fense” under the Armed Career Criminal Act. Id. at 647.
A state statute of conviction may, however, be divisible
even if it is overbroad. Id. at 648. A statute is divisible if it “sets
out one or more elements of the offense in the alternative.”
Descamps v. United States, 570 U.S. 254, 257 (2013). We apply
the modified categorical approach if the statute is divisible,
which allows a sentencing court to “consult a limited class of
documents … to determine which alternative formed the ba-
sis of the defendant’s prior conviction … for the limited pur-
pose of determining whether the elements of the crime of con-
viction match (or are narrower than) the elements of the ge-
neric offense.” Chazen v. Marske, 938 F.3d 851, 857 (7th Cir.
2019) (quoting Van Cannon v. United States, 890 F.3d 656, 663
(7th Cir. 2018)); see also Shepard v. United States, 544 U.S. 13, 26
(2005). “If the alternative means listed in an indivisible statute
cover a broader swath of conduct than the generic offense,
then a conviction under the statute doesn’t count as a[] …
predicate.” Van Cannon, 890 F.3d at 663 (citing Mathis, 136 S.
Ct. at 2251).
2. The Saving Clause Gateway to § 2241
Section 2255 allows a federal prisoner to seek collateral re-
view of his sentence by motion. Usually, a prisoner is limited
to one motion. The statute, however, permits a successive mo-
tion only if the prisoner’s claim is based on “newly discovered
evidence” or “a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme Court, that
was previously unavailable.” § 2255(h)(1)–(2).
“The statutory saving clause, § 2255(e), permits another
round of collateral review through a petition for habeas
10 No. 20-1093
corpus under § 2241, but only if the remedy by motion is ‘in-
adequate or ineffective to test the legality of [the prisoner’s]
detention.’” Guenther v. Marske, 997 F.3d 735, 741 (7th Cir.
2021) (alteration in original) (quoting § 2255(e)). “We have
held that an avenue for postconviction relief may be ‘inade-
quate’ or ‘ineffective’ when ‘so configured as to deny a con-
victed defendant any opportunity for judicial rectification of
so fundamental a defect in his conviction as having been im-
prisoned for a nonexistent offense.’” Higgs v. Watson, 984 F.3d
1235, 1239 (7th Cir. 2021) (quoting In re Davenport, 147 F.3d
605, 611 (7th Cir. 1998)).
We have established a three-part test to determine
whether a petitioner is entitled to relief under the saving
clause:
To pursue relief under § 2241, a petitioner must es-
tablish that “(1) the claim relies on a statutory inter-
pretation 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 justice.”
Chazen, 938 F.3d at 856 (quoting Beason v. Marske, 926 F.3d 932,
935 (7th Cir. 2019)).
3. Gamboa’s Eligibility for § 2241 Relief
Gamboa’s ability to pursue relief under § 2241 depends on
establishing that he was unable, in his prior § 2255 proceed-
ings, to advance the arguments he now raises to challenge his
sentence. As a preliminary matter, Mathis is a statutory-inter-
pretation case, and the government does not dispute that
Mathis applies retroactively to cases on collateral review. See
No. 20-1093 11
Guenther, 997 F.3d at 742; Chazen, 938 F.3d at 861–62. But the
government argues that Gamboa’s three predicate convic-
tions do not legitimately depend on Mathis; that his argu-
ments would have been available to him in a timely § 2255
motion; and that Gamboa cannot show that any error regard-
ing his three predicate drug convictions has caused a miscar-
riage of justice.
Addressing the government’s second argument resolves
this appeal. The second requirement of our test to determine
whether a petitioner is entitled to relief under the saving
clause has two parts: retroactivity and prior unavailability of
the challenge. See Montana v. Cross, 829 F.3d 775, 783 (7th Cir.
2016). Our analysis here is focused on prior unavailability of
the challenge.
“[W]e have repeatedly stressed that a petitioner seeking to
invoke the saving[] clause must establish that he was unable
to raise his statutory claim at the time of his original § 2255
petition … .” Chazen, 938 F.3d at 861. “But if it ‘would have
been futile’ for [petitioner] to raise [his] arguments in his
§ 2255 motion because the ‘law was squarely against him,’
then the saving[] clause applies and [petitioner] may proceed
and pursue resentencing under § 2241.” Beason, 926 F.3d at
936 (quoting Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir.
2015)). We focus on whether the law in the circuit of convic-
tion would have been against the habeas petitioner. See
Prevatte v. Merlak, 865 F.3d 894, 897 (7th Cir. 2017).
The district court found that Gamboa’s arguments as to
whether his prior state convictions are broader than the defi-
nition of a “felony drug offense” were available to him pre-
Mathis. We agree with the district court. Gamboa is therefore
12 No. 20-1093
unable to pursue relief under the saving clause gateway to
§ 2241.
A dive into Gamboa’s arguments demonstrates why.
Gamboa argues that applying Mathis shows his prior state
drug convictions do not constitute felony drug offenses for
the purposes of the sentencing enhancement under
§ 841(b)(1)(A). Before Mathis was decided, there was a circuit
split over the “elements” versus “means” distinction in the
context of predicate offenses under the Armed Career Crimi-
nal Act. The Eighth Circuit, the circuit in which Gamboa was
convicted, explicitly rejected any distinction between means
and elements, instead holding that courts must apply the
modified categorical approach whether a statute listed alter-
native elements or alternative means. See United States v.
Mathis, 786 F.3d 1068, 1074–75 (8th Cir. 2015), rev'd, 579 U.S.
500 (2016).
In determining whether Iowa’s burglary qualified as a vi-
olent felony predicate under the Armed Career Criminal Act,
the Court in Mathis focused on whether the district court
erred in using Mathis’s conviction records to determine which
type of burglary he committed, and whether the different lo-
cations in the Iowa burglary statute amounted to alternative
means or alternative elements. Mathis, 136 S. Ct. at 2250–51.
The Supreme Court held that the modified categorical ap-
proach is unavailable when a statute lists multiple means to
satisfy just one element—thus resolving the split by rejecting
the Eighth Circuit’s prior approach. Id. at 2253. The distinction
between elements and means is important, the Court ex-
plained, because if a state statute lists alternative means, in-
stead of alternate elements, the statute is not divisible. Id. at
2257. That is, a court may not rely on the modified categorical
No. 20-1093 13
approach to determine which of the alternatives formed the
basis of a defendant’s conviction. Id.
Based on the clarification Mathis provided about the dis-
tinction between elements versus means, Gamboa argues that
it was not until the Supreme Court reversed the Eighth Circuit
in Mathis that he had an opportunity to bring the claim he cur-
rently advances, given that his prior convictions are “the same
type” as those at issue in Mathis. Again, the claim he currently
advances is that his prior state convictions do not qualify as
“felony drug offenses” because the Minnesota and North Da-
kota statutes are overbroad and not divisible.
Because Gamboa seeks to invoke the saving clause, it is
not necessary to examine the merits of his claim, because it is
not relevant whether his claims have any merit if he was able
“to raise his statutory claim at the time of his original § 2255
petition.” Chazen, 938 F.3d at 861. The government contends
that Gamboa’s arguments rest on straightforward compari-
sons between state and federal definitions of “cocaine” and
“marijuana,” respectively, and that Gamboa’s argument re-
garding his conspiracy conviction rests on a straightforward
comparison between Minnesota controlled substances and
federal controlled substances.
But Gamboa insists that he was foreclosed from bringing
his claims pre-Mathis because of Eighth Circuit precedent—
pointing to United States v. Payton, 918 F.2d 54 (8th Cir. 1990),
and United States v. Cornelius, 931 F.2d 490 (8th Cir. 1991). In
Payton, the Eighth Circuit reviewed the same Iowa burglary
statute that was later found indivisible and not subject to the
modified categorical approach by the Supreme Court in
Mathis. 918 F.2d at 55. The Eighth Circuit at that time looked
to the charging paper and determined that the defendant was
14 No. 20-1093
charged and convicted with burglary of a building. Id. at 56.
In Cornelius, the Eighth Circuit held that the district court
erred when it believed that Taylor prevented it from looking
beyond the defendant’s guilty plea to determine whether the
elements of the offense for which he was convicted consti-
tuted generic burglary. 931 F.2d at 494.
Both Payton and Cornelius dealt with whether the respec-
tive district courts could look to charging papers to determine
whether they contained the elements of generic burglary re-
quired by Taylor. But those cases are not pertinent to what
Gamboa is really arguing here. He is arguing that the Minne-
sota and North Dakota statutes are categorically broader than
the relevant federal statutes.
Indeed, he relies on our decision in De La Torre, to argue
the three state statutes are categorically broader than the fed-
eral definitions because the states’ drug schedules criminalize
substances that the federal schedules do not. 940 F.3d at 949.
He then relies on precedent from our circuit, like Elder, to ar-
gue that the three state statutes are not divisible. 900 F.3d at
497, 501–03 (applying the Taylor categorical approach but de-
clining to apply the modified categorical approach in finding
that the Arizona statute at issue criminalizes a broader cate-
gory of drugs than § 802(44) incorporates and is not divisible).
These arguments do not rely on Mathis; they rely on Taylor
and Descamps. Moreover, this same standard analysis is still
being used in the Eighth Circuit post-Mathis, without relying
on Mathis. Cf. United States v. Oliver, 987 F.3d 794, 807 (8th Cir.
2021).
We therefore cannot see how Payton and Cornelius pre-
vented Gamboa from making an argument in the Eighth Cir-
cuit that an alternatively phrased statute could be indivisible
No. 20-1093 15
under the categorical approach at the time of his initial § 2255
motion. And the additional cases Gamboa relies on are distin-
guishable.
Simply, Gamboa cannot seek relief under the saving
clause gateway to § 2241 because, whether under the Taylor
categorical approach or a comparison of the straightforward
federal definition to the state statute of conviction, the law
was not squarely against Gamboa and it would not have been
futile for him to raise his arguments in his initial § 2255 mo-
tion. Cf. United States v. Boleyn, 929 F.3d 932, 936 (8th Cir. 2019)
(citing Taylor, 495 U.S. at 600–02) (“In determining whether a
prior § 124.401 conviction [under Iowa law] qualifies as a
predicate offense for purposes of these federal sentencing en-
hancements, we apply a categorical approach that looks to the
statutory definition of the prior offense, not to the facts under-
lying a defendant’s prior convictions.”); United States v.
Brown, 598 F.3d 1013, 1015–18 (8th Cir. 2010) (comparing Iowa
statute for delivery of simulated methamphetamine with fed-
eral statutes and concluding that defendant’s convictions un-
der the Iowa statute did not qualify as “felony drug offenses”
within the meaning of 21 U.S.C. § 802(44)); see also id. at 1019–
21 (Shepherd, J., dissenting) (citing the Taylor categorical ap-
proach to argue that defendant’s Iowa conviction categori-
cally qualified as a “felony drug offense”); United States v.
Modisett, 731 F. App’x 548, 550–51 (8th Cir. 2018) (per curiam)
(nonprecedential) (finding, post-Mathis, that defendant’s
Minnesota fifth-degree controlled substance crime qualified
as a prior felony drug offense, without relying on Mathis).
III. CONCLUSION
For the reasons above, the district court’s denial of Gam-
boa’s petition for writ of habeas corpus is AFFIRMED.