Todd R. Chazen v. Matthew Marske

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3268
TODD R. CHAZEN,
Petitioner-Appellee,
v.
MATTHEW MARSKE,
Respondent-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17-cv-447 — James D. Peterson, Chief Judge.
____________________
ARGUED FEBRUARY 8, 2019 — DECIDED SEPTEMBER 9, 2019
____________________
Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. A federal jury in Minnesota con-
victed Todd Chazen of possessing a firearm following a prior
felony conviction. The district court then sentenced Chazen
pursuant to the Armed Career Criminal Act, which mandates
a minimum 15-year sentence for a defendant who unlawfully
possesses a firearm and has three prior convictions for a seri-
ous drug offense or violent felony. After an unsuccessful di-
rect appeal and petition for post-conviction relief under
2 No. 18-3268
28 U.S.C. § 2255, Chazen turned to 28 U.S.C. § 2241 and
sought a writ of habeas corpus, arguing that the application
of a recent Supreme Court decision shows he no longer qual-
ifies as an armed career criminal and is entitled to a lesser sen-
tence. The district court agreed and granted habeas relief. We
affirm.
I
A. Chazen’s Sentencing and Direct Appeal
Following a 2011 trial in the District of Minnesota, a jury
convicted Todd Chazen of being a felon in possession of a fire-
arm, in violation of 18 U.S.C. § 922(g)(1). While this offense
ordinarily carries a ten-year maximum sentence, 18 U.S.C.
§ 924(a)(2), the district court considered whether Chazen
qualified for an enhanced sentence under the Armed Career
Criminal Act.
The Act mandates a 15-year minimum sentence if a de-
fendant has three or more prior convictions for a “violent fel-
ony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). The Act
defines violent felony as any federal or state felony that “has
as an element the use, attempted use, or threatened use of
physical force against the person of another” (the elements
clause) or is “burglary, arson, or extortion” (the enumerated
offenses clause). Id. § 924(e)(2)(B). At the time of Chazen’s sen-
tencing, the definition also included a residual clause, which
encompassed any felony that “otherwise involves conduct
that presents a serious potential risk of physical injury to an-
other.” Id. In Johnson v. United States, the Supreme Court held
the residual clause void for vagueness. 135 S. Ct. 2551, 2557
(2015).
No. 18-3268 3
Chazen has five felony convictions under Minnesota law:
second-degree assault; second-degree manufacture of a con-
trolled substance; escape from custody; and two convictions
for second-degree burglary. At sentencing the government
conceded that because Chazen’s two burglary convictions oc-
curred on the same day and involved the same course of con-
duct, they should not be counted as separate predicate con-
victions under the Armed Career Criminal Act. The govern-
ment further conceded that Chazen’s controlled substances
conviction did not qualify as a serious drug offense within the
meaning of the Act. But it nonetheless advocated for an en-
hanced sentence on the basis of Chazen’s three remaining
convictions—for assault, escape, and burglary. For his part,
Chazen agreed that one of his burglary convictions and his
assault conviction were qualifying felonies, but argued that
he was not an armed career criminal because his escape con-
viction did not count as a violent felony predicate.
The district court in Minnesota sided with the government
and sentenced Chazen to 21 years’ imprisonment. In doing so,
the court did not specify which convictions qualified Chazen
as an armed career criminal, noting only that “there [were] a
number of possibilities” and finding (without further elabo-
ration) that Chazen had “at least four” predicates.
On direct appeal in the Eighth Circuit, Chazen challenged
his enhanced sentence, arguing that the district court erred by
concluding that his Minnesota escape conviction was a quali-
fying felony under the Armed Career Criminal Act’s residual
clause. Relying on the government’s concessions at sentenc-
ing, he maintained that without the improper consideration
of his escape conviction, he no longer had three qualifying of-
fenses. The government responded by withdrawing its
4 No. 18-3268
concessions about Chazen’s burglary convictions and his
drug conviction, asserting that any error with his escape con-
viction was harmless because, even without it, at least three
qualifying convictions remained. It also contended that Cha-
zen’s escape argument was directly foreclosed by Eighth Cir-
cuit precedent. The Eighth Circuit agreed with the govern-
ment and affirmed Chazen’s sentence, concluding that the es-
cape conviction qualified as a predicate under the Act’s resid-
ual clause. See United States v. Chazen, 469 F. App’x 508, 509
(8th Cir. 2012).
B. Chazen’s § 2255 Petitions
In 2013, Chazen invoked 28 U.S.C. § 2255 and petitioned
for post-conviction relief in the District of Minnesota, again
challenging his classification as an armed career criminal.
Chazen persisted in his contention that the sentencing court
erred in determining that his escape conviction qualified as a
violent felony predicate. He also argued that the court was
unable to rely on his drug conviction or one of his burglary
convictions given the government’s concessions at sentenc-
ing. The district court denied relief, concluding that the es-
cape conviction qualified as a violent felony and finding Cha-
zen’s other arguments procedurally defaulted.
Two years after Chazen’s unsuccessful § 2255 petition, the
legal landscape shifted. First, the Supreme Court held that the
Act’s residual clause was unconstitutionally vague. See John-
son, 135 S. Ct. at 2557. Because Chazen’s escape conviction
was a residual-clause offense, he sought authorization from
the Eighth Circuit to file a second § 2255 petition for post-con-
viction relief. He simultaneously proceeded to file a second
§ 2255 petition in the sentencing court (the District of Minne-
sota), arguing that because Johnson knocked out his escape
No. 18-3268 5
conviction, he no longer qualified as an armed career crimi-
nal. The government agreed that Chazen’s escape conviction
no longer qualified as a predicate following Johnson. But the
government maintained that Chazen still had the three strikes
requisite to qualify as an armed career criminal owing to his
Minnesota assault conviction and two burglary convictions.
In May 2016, the Eighth Circuit summarily denied Chazen’s
application to file a second § 2255 petition. The Minnesota dis-
trict court then concluded it lacked jurisdiction to consider his
§ 2255 petition.
C. Chazen’s § 2241 Petition
The landscape shifted a second time in June 2016, when
the Supreme Court decided Mathis v. United States, 136 S. Ct.
2243. Mathis was meaningful because it narrowed the range
of state statutes that qualify as violent felony predicates under
the Armed Career Criminal Act. Seeing this development,
Chazen again pursued post-conviction relief, this time by fil-
ing a petition under 28 U.S.C. § 2241 in the Western District of
Wisconsin, where he is serving his sentence.
In response to this new petition, the parties agreed that,
due to intervening changes in the law, only three of Chazen’s
prior Minnesota convictions potentially qualified him as an
armed career criminal: his second-degree assault conviction
and his two second-degree burglary convictions. Relying on
Mathis, Chazen argued that his burglary convictions no
longer counted as violent felonies under the Act’s enumerated
offense clause. He also pointed to the Eighth Circuit’s decision
in United States v. McArthur, 850 F.3d 925, 940 (8th Cir. 2017),
which held that the Minnesota crime of third-degree burglary
no longer qualifies as a predicate under the Act after the Su-
preme Court’s decision in Mathis.
6 No. 18-3268
Another legal development occurred in 2018. While Cha-
zen’s § 2241 petition was pending in the district court (in the
Western District of Wisconsin, where he is confined), this
court joined the Eighth Circuit in holding that because the
Minnesota burglary statute covers more conduct than generic
burglary, it does not qualify as a predicate violent felony un-
der the Act. See Van Cannon v. United States, 890 F.3d 656, 665
(7th Cir. 2018). We reached this conclusion with respect to sec-
ond-degree burglary, but the parties agree that for purposes
of this appeal, there is no meaningful distinction between sec-
ond- and third-degree burglary under Minnesota law.
Relying on both Mathis and Van Cannon, the district court
granted Chazen’s § 2241 petition, concluding that his bur-
glary convictions no longer qualified as violent felony predi-
cates. This left Chazen with only one qualifying predicate (his
Minnesota assault conviction), which was not enough for an
enhanced sentence under the Act. Accordingly, the district
court ordered resentencing.
As part of affording Chazen habeas relief under § 2241, the
district court took care to address a procedural point that de-
fines much of the battleground in this appeal. The court de-
termined that relief was available to Chazen under § 2241 be-
cause, at the time of his original § 2255 petition in 2013, Eighth
Circuit precedent foreclosed any contention that his two prior
Minnesota burglary convictions did not qualify as violent fel-
ony predicates under the Act. Being foreclosed like this meant
that, following Mathis, Chazen was able through the so-called
savings clause in § 2255(e) to pursue relief pursuant to § 2241.
In granting relief, the district court (in Wisconsin) trans-
ferred Chazen’s case back to the District of Minnesota (the
No. 18-3268 7
district of conviction) for resentencing. The government now
appeals.
II
At this point, all agree that the validity of Chazen’s sen-
tence under the Armed Career Criminal Act depends on
whether his two prior Minnesota burglary convictions qualify
as generic burglary under the Act’s enumerated offense
clause. They take different positions on the merits of that
question while also spilling substantial ink on the very knotty
procedural issue of whether Chazen can pursue relief under
§ 2241. The complexity of the procedural question is stagger-
ing.
A. The Savings Clause and § 2241
As a general rule, a federal prisoner wishing to collaterally
attack his conviction or sentence must do so under § 2255 in
the district of conviction. See Light v. Caraway, 761 F.3d 809,
812 (7th Cir. 2014). If, however, § 2255 is “inadequate or inef-
fective to test the legality of [the prisoner’s] detention,” relief
may be granted under § 2241, the general federal habeas cor-
pus statute, in the district of incarceration. 28 U.S.C. § 2255(e);
see also Light, 761 F.3d at 812. In In re Davenport, we examined
the scope of this provision, known as the “savings clause,”
and concluded that whether § 2255 was “inadequate or inef-
fective” turns on whether a petitioner had “a reasonable op-
portunity [in a prior § 2255 proceeding] to obtain a reliable
judicial determination of the fundamental legality of his con-
viction and sentence.” 147 F.3d 605, 609 (7th Cir. 1998); see
also Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (en
banc) (reiterating that Davenport is the law of this circuit). In
considering Chazen’s appeal, we are bound by Davenport.
8 No. 18-3268
In Davenport’s wake, we have established a three-part test
to determine whether a petitioner satisfies § 2255(e)’s savings
clause. See, e.g., Montana v. Cross, 829 F.3d 775, 784 (7th Cir.
2016). To pursue relief under § 2241, a petitioner must estab-
lish that “(1) the claim relies on a statutory interpretation case,
not a constitutional case, and thus could not have been in-
voked 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.” Beason v. Mar-
ske, 926 F.3d 932, 935 (7th Cir. 2019).
Everyone agrees that Chazen satisfies the first and third
requirements. On the first prong, Chazen argues that the di-
rection recently provided by the Supreme Court in Mathis—a
decision interpreting the Armed Career Criminal Act—means
that his Minnesota burglary convictions no longer qualify as
violent felonies. And, as to the third prong for pursuing relief
under § 2241, we have held that a defendant sentenced in er-
ror as an armed career criminal satisfies the “miscarriage of
justice” requirement. See Light, 761 F.3d at 813.
The disagreement comes on the middle prong of the sav-
ings clause test and whether Chazen was foreclosed in his
prior § 2255 petition from asserting the claim he now raises.
This question cannot be answered without evaluating the
state of the law at that time and how it has changed. In this
way, then, substance and process bleed together. Our analysis
proceeds in two steps. First, we assess whether his second-
degree burglary convictions under Minnesota law no longer
qualify as violent felonies in light of Mathis. Second, we con-
sider whether the law in place at the time of his prior § 2255
petition foreclosed the Mathis-based argument he now
No. 18-3268 9
advances to challenge his enhanced sentence. Chazen is enti-
tled to relief under § 2241 only if he can get to yes on both
questions.
B. “Violent Felony” Under the Act
Recall that the Armed Career Criminal Act includes “bur-
glary” in its list of enumerated violent felonies. See
§ 924(e)(2)(B)(ii). While the statute does not define the offense,
the Supreme Court has held that Congress used “burglary” to
refer to the generic version of the crime, meaning “an unlaw-
ful or unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime.” Taylor v.
United States, 495 U.S. 575, 598 (1990).
To determine whether a prior conviction meets this defi-
nition, Taylor instructed courts to use what is known as the
“categorical approach” by “look[ing] only to the statutory
definitions of the prior offenses, and not to the particular facts
underlying those convictions.” Id. at 600. If the statute under
which a defendant was previously convicted “substantially
corresponds” to or is narrower than Taylor’s generic defini-
tion, the conviction qualifies as a violent felony under the Act.
Id. at 602. Put another way, “[a] crime counts as ‘burglary’ un-
der the Act if its elements are the same as, or narrower than,
those of the generic offense.” Mathis, 136 S. Ct. at 2248. But if
“the statute sweeps more broadly than the generic crime, a
conviction under that law cannot count as an [Armed Career
Criminal Act] predicate, even if the defendant actually com-
mitted the offense in its generic form.” Descamps v. United
States, 570 U.S. 254, 261 (2013).
In so interpreting the Act, the Supreme Court has recog-
nized a “narrow range of cases” in which sentencing courts
10 No. 18-3268
are permitted to look beyond the statute of conviction to de-
termine whether a prior conviction meets Taylor’s generic def-
inition of burglary. Taylor, 495 U.S. at 602. If a statute is divisi-
ble—meaning it “sets out one or more elements of the offense
in the alternative”—courts may apply the so-called “modified
categorical approach.” Descamps, 570 U.S. at 257. Under this
approach, a sentencing court may “consult a limited class of
documents, such as indictments or jury instructions, to deter-
mine which alternative formed the basis of the defendant’s
prior conviction,” id., “but only for the limited purpose of de-
termining whether the elements of the crime of conviction
match (or are narrower than) the elements of the generic of-
fense.” Van Cannon, 890 F.3d at 663.
The Supreme Court has underscored an important quali-
fier: the modified categorical approach applies only to divisi-
ble statutes. The approach does not apply if a statute is indi-
visible—where the statute of conviction does not contain al-
ternative elements, but rather “a single, ‘indivisible’ set of el-
ements sweeping more broadly than the corresponding ge-
neric offense.” Descamps, 570 U.S. at 260. When faced with a
statute that “defines a single offense, albeit one with multiple
modes of conviction,” a sentencing court is confined to the
statutory elements and therefore cannot rely on any docu-
ments from a defendant’s criminal case or otherwise embark
on fact finding to discern the defendant’s actual offense con-
duct. Van Cannon, 890 F.3d at 663. If the analysis shows that
“the alternative means listed in an indivisible statute cover a
broader swath of conduct than the generic offense, then a con-
viction under the statute doesn’t count as an [Armed Career
Criminal Act] predicate.” Id.
No. 18-3268 11
The legal upshot, then, is that the question of whether a
court may employ the modified categorical approach to an
overbroad statute turns on the issue of divisibility. In the af-
termath of Taylor and Descamps, lower courts grappled with
how to determine whether a statute is divisible, a distinction
that hinges on the often subtle and hairline difference be-
tween elements and means. See Najera-Rodriguez v. Barr,
926 F.3d 343, 348 (7th Cir. 2019) (“The difference between ‘el-
ements’ and ‘means’ can seem slippery, sometimes almost
metaphysical, but significant legal consequences flow from
that difference.”).
Adding to the ambiguity, some circuits interpreted a foot-
note in Descamps to permit sentencing courts to continue to
apply the modified categorical approach—by reviewing the
record of conviction—whenever a statute lists alternative
ways to commit a crime, even if the alternatives were means
rather than elements. See Descamps, 570 U.S. at 264 n.2 (noting
that “[w]hatever a statute lists (whether elements or means),
the documents we approved in Taylor and Shepard—i.e., in-
dictment, jury instructions, plea colloquy, and plea agree-
ment—would reflect the crime’s elements”). The Eighth Cir-
cuit, for example, read Descamps as “explicitly reject[ing]” any
“means/elements distinction,” and cited footnote 2 for the
proposition that courts “must apply the modified categorical
approach” whether a statute listed alternative elements or al-
ternative means. United States v. Mathis, 786 F.3d 1068, 1074,
1075 (8th Cir. 2015), rev’d, 136 S. Ct. 2243 (2016). While the
Sixth and Tenth Circuits adopted the same approach, see, e.g.,
United States v. Ozier, 796 F.3d 597, 600 (6th Cir. 2015); United
States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014), other cir-
cuits reached a contrary conclusion. See, e.g., Rendon v. Holder,
764 F.3d 1077, 1086 (9th Cir. 2014) (citing Descamps for the
12 No. 18-3268
precept that “it is black-letter law that a statute is divisible
only if it contains multiple alternative elements, as opposed to
multiple alternative means”); Omargharib v. Holder, 775 F.3d
192, 198 (4th Cir. 2014) (explaining that “a crime is divisible
under Descamps only if it is defined to include multiple alter-
native elements (thus creating multiple versions of a crime), as
opposed to multiple alternative means (of committing the
same crime)”).
None of this is surprising. The law in this area is complex
in the extreme; unexpected difficulties and nuances surface in
new cases; and it often takes the Supreme Court deciding ad-
ditional cases for clarity and stability to begin to emerge. Law
develops iteratively like this in many areas, which is exactly
what Chazen saw happen here.
To that end, in Mathis v. United States, the Supreme Court
granted review to clarify when a statute qualifies as “divisi-
ble” and to resolve the circuit split that had developed over
the “elements” versus “means” distinction in the context of
predicate offenses under the Armed Career Criminal Act. See
136 S. Ct. at 2251.
At issue in Mathis was whether Iowa’s burglary statute
qualified as a violent felony predicate. See id. at 2250. The par-
ties agreed that the statute extended to conduct beyond ge-
neric burglary because it criminalized unlawful entry into a
broader range of places, including “any building, structure,
[or] land, water, or air vehicle.” Id. (quoting Iowa Code
§ 702.12 (2013)). The debate centered on whether the sentenc-
ing court erred in consulting Mathis’s conviction records to
determine which type of burglary he committed and, relat-
edly, whether the different locations in the Iowa statute
amounted to alternative means or alternative elements. See id.
No. 18-3268 13
On this latter question, the Eighth Circuit had concluded this
was a distinction without a difference, explaining that
“[w]hether [the different locations] amount[ed] to alternative
elements or merely alternative means to fulfilling an element,
the statute is divisible, and [the court] must apply the modi-
fied categorical approach.” Mathis, 786 F.3d at 1075. In so
holding, the Eighth Circuit added to the circuit split rooted in
confusion about what makes a statute divisible for purposes
of applying the modified categorical approach.
The Supreme Court resolved the split by rejecting the
Eighth Circuit’s approach—which other courts had also
adopted—and held that the modified categorical approach is
unavailable when, as with the Iowa law, a statute lists multi-
ple “means” to satisfy just one element. Mathis, 136 S. Ct. at
2253. In reaching this conclusion, the Court stressed that
“[d]istinguishing between elements and facts is … central to
[the Act’s] operation,” id. at 2248, because if a statute lists al-
ternative means (rather than elements) it is not divisible, and,
as a consequence, a court may not rely on the modified cate-
gorical approach to determine which of the alternatives
formed the basis of a defendant’s conviction. See id. at 2257.
Instead, the Court explained, the sentencing court is confined
to the text of the statute and if, as with burglary under Iowa
law, any of the alternative means of satisfying a statutory ele-
ment is broader than generic burglary, the conviction cannot
qualify as a predicate under the Armed Career Criminal Act.
See id. at 2248.
The Court also provided guidance for distinguishing be-
tween elements and means, explaining that “elements” are a
crime’s “constituent parts,” which a jury must find beyond a
reasonable doubt or a defendant must admit if he pleads
14 No. 18-3268
guilty. Id. at 2248. “Means,” on the other hand, are merely
“various factual ways of committing some component of the
offense—a jury need not find (or a defendant admit)” them.
Id. at 2249. A prior conviction counts as generic burglary un-
der the Act only if its elements—not the means of satisfying
the elements—are the same as or narrower than the generic
definition of burglary. See id. at 2256.
C. Chazen’s Minnesota Burglary Convictions
Returning to the facts here, Chazen argues that his Minne-
sota second-degree burglary convictions no longer qualify as
“violent felonies” in light of Mathis. We recently considered
the Minnesota burglary statute in Van Cannon v. United States
and reached this exact conclusion. 890 F.3d 656, 665 (7th Cir.
2018).
Our analysis proceeded within the framework the Su-
preme Court supplied in Mathis. We first considered whether
the statute contained alternative elements—in which case the
statute is divisible, and the modified categorical approach is
available—or alternative means of committing a single ele-
ment—which ends the inquiry. The Minnesota legislature de-
fined second-degree burglary this way: “Whoever 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, commits bur-
glary in the second degree” if certain aggravating factors are
present. Minn. Stat. § 609.582(2)(a) (emphasis added). We con-
cluded that “[t]he disjunctive phrasing describes two differ-
ent factual ways”—or means—“of committing a single
crime,” meaning the statute is indivisible. Van Cannon, 890
F.3d at 664. “Because the statute is indivisible,” we explained,
“a conviction under it does not count as an [Armed Career
No. 18-3268 15
Criminal Act] predicate if one of the listed alternatives is
broader than generic burglary.” Id.
We concluded that the Minnesota statute contained such
overbreadth. Specifically, we determined that while the first
alternative qualifies as generic burglary—a person commits
second-degree burglary if he “enters a building without con-
sent and with intent to commit a crime,” Minn. Stat.
§ 609.582(2)(a)—the second alternative criminalizes conduct
that is broader than Taylor’s definition of generic burglary be-
cause it “doesn’t require proof of intent to commit a crime at
all—not at any point during the offense conduct.” Id. (empha-
sis in the original).
After Van Cannon, then, our law is clear that a conviction
for Minnesota second-degree burglary does not qualify as a
predicate violent felony under the Armed Career Criminal
Act. Nothing about this appeal requires us to revisit that hold-
ing.
But we do need to take a breath and address a procedural
point. Remember that Chazen committed his felon-in-posses-
sion offense and was convicted and sentenced in the District
of Minnesota—in other words, within the Eighth Circuit. But
he is currently incarcerated in the Western District of Wiscon-
sin—in our circuit. These locations matter, for it is well-estab-
lished that if relief under § 2241 is available at all, it must be
sought in the district of incarceration. See Light, 761 F.3d at
812. Here, then, that means Chazen had to file his § 2241 peti-
tion in a district court in this circuit, which he did by going to
the Western District of Wisconsin. What is less clear, however,
is whether, in evaluating the merits of Chazen’s petition, we
should apply our own precedent or the precedent of the cir-
cuit of conviction. See Shepherd v. Krueger, 911 F.3d 861, 863
16 No. 18-3268
(7th Cir. 2018) (explaining that the parties debate “whether
§ 2241 should be available to [petitioner] at all, and if so
whether this court should apply our own precedent or Sixth
Circuit precedent,” but “elect[ing] to bypass these procedural
hurdles for relief because this case can be resolved most
simply on the merits”).
We need not decide this issue here because the govern-
ment took the position in the district court that the law of this
circuit governs the merits of Chazen’s claim. 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 explaining that § 2241 and § 2255 address remedies,
not jurisdiction). Given this concession, we see no reason why
our holding in Van Cannon does not resolve the merits of Cha-
zen’s claim.
Our course of analysis is unaffected by the Supreme
Court’s most recent decision in Quarles v. United States, 139 S.
Ct. 1872 (2019). In Quarles, the Court considered the “exceed-
ingly narrow question” whether Taylor’s definition of generic
burglary requires proof that a defendant intended to commit
a crime at the time he unlawfully entered, or instead whether
it is sufficient that he formed the intent to commit a crime at
some point while unlawfully “remaining in” the building or
structure. Id. at 1875. The Court held that “generic remaining-
in burglary occurs under § 924(e) when the defendant forms
the intent to commit a crime at any time while unlawfully re-
maining in a building or structure.” Id. at 1880. As the govern-
ment has pointed out in its supplemental briefing, this hold-
ing may well abrogate the Eighth Circuit’s decision in McAr-
thur, which rested on the “contemporaneous intent” reason-
ing rejected in Quarles. See McArthur, 850 F.3d at 939. But the
No. 18-3268 17
Eighth Circuit has not resolved this question. See Raymond v.
United States, No. 18-2349, 2019 WL 3783103, at *3 (8th Cir.
Aug. 13, 2019) (observing without deciding that the Supreme
Court’s decision in Quarles may have abrogated McArthur).
What we can say with confidence is that Quarles did not
abrogate Van Cannon’s conclusion that Minnesota burglary is
broader than generic burglary because the state statute does
not require proof of any intent at any point. Indeed, the Court
expressly declined to address this issue in Quarles. See 139 S.
Ct. at 1880 n.2.
What all of this means, then, is that Chazen’s Minnesota
burglary convictions no longer qualify as violent felony pred-
icates under the reasoning of Van Cannon. And with there be-
ing no contrary law in the Eighth Circuit, we believe Chazen
has done enough to show that he no longer qualifies as an
armed career criminal.
D. Chazen’s Eligibility for § 2241 Relief
Reaching this conclusion on the merits of Chazen’s claim,
however, is not the end of the inquiry. The reason is because
Chazen is pursuing relief under § 2241 and his ability to do so
depends on establishing that he was unable in his prior § 2255
proceedings to advance the arguments he now raises to chal-
lenge his sentence. See Beason, 926 F.3d at 935 (explaining the
requirements for pursuing relief under § 2241 via the savings
clause in § 2255(e)). On this point, the analysis encounters yet
additional complexity.
The government insists that Chazen cannot rely on the
savings clause to pursue relief under § 2241 because his claim
does not rely on a “new, retroactive rule.” Gov’t Br. at 16. In
its view, because Mathis did not announce a substantive
18 No. 18-3268
change in the law, but rather clarified the circumstances un-
der the Armed Career Criminal Act in which a sentencing
court may apply the modified categorical approach, Chazen
could have raised his arguments about Minnesota’s burglary
statute in his initial § 2255 petition by relying on pre-Mathis
Supreme Court decisions like Taylor and Descamps. As the
government sees it, then, because Chazen was not foreclosed
from raising these arguments in his initial collateral attack, he
cannot now bring his claims under § 2241.
As an initial matter, the government conceded in the dis-
trict court that Mathis is retroactive. We have likewise sug-
gested (without deciding) that Mathis is retroactive. See Holt
v. United States, 843 F.3d 720, 722 (7th Cir. 2016) (observing
that “substantive decisions such as Mathis presumptively ap-
ply retroactively on collateral review”). But assessing the re-
mainder of the government’s position—that Chazen may not
rely on Mathis because it did not announce a “new rule”—is
complicated by the fact that we have not been consistent in
our articulation of the second requirement of the savings-
clause test. While we have repeatedly stressed that a peti-
tioner seeking to invoke the savings clause must establish that
he was unable to raise his statutory claim at the time of his
original § 2255 petition—thus showing that § 2255 was “inad-
equate or ineffective to test the legality of [the prisoner’s] de-
tention”—we have “employed various formulations of this
inquiry.” Montana, 829 F.3d at 784. In some instances, we have
said that satisfying this condition requires a petitioner to
show that he is relying on a “new rule” that applies “retroac-
tively to cases on collateral review and could not have been
invoked in his earlier proceeding.” Camacho v. English, 872
F.3d 811, 813 (7th Cir. 2017); see also Davis v. Cross, 863 F.3d
962, 964 (7th Cir. 2017) (same); Prevatte, 865 F.3d at 897 (same).
No. 18-3268 19
Yet we have never explained what “new” means or requires
in this context.
In other instances, we have articulated the requirement for
satisfying the savings clause, not in terms of a “new rule,” but
rather in terms of whether the petitioner “relies on a retroac-
tive decision that he could not have invoked in his first § 2255
motion.” Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013);
see also Beason, 926 F.3d at 935 (same); Poe v. LaRiva, 834 F.3d
770, 772–73 (7th Cir. 2016) (same); Light, 761 F.3d at 812–13;
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). More to it, we
have held that a petitioner seeking relief under § 2241 need
only show that the case on which he relies had not yet been
decided at the time of his § 2255 petition. See, e.g., Rios, 696
F.3d at 640. Under this formulation, Chazen would meet the
second criteria because the Supreme Court decided Mathis
two years after his initial § 2255 petition.
In still other cases, we have employed a “slightly higher
standard,” requiring a petitioner to show not only that he re-
lies on a newly decided case of statutory interpretation, but
also that, at the time of his initial § 2255 petition, his claim was
“foreclosed by binding precedent” in the circuit of his convic-
tion. Brown, 719 F.3d at 595 (quoting Hill v. Werlinger, 695 F.3d
644, 648 (7th Cir. 2012)). And most recently we have explained
that “if it ‘would have been futile’ for a petitioner to raise
these arguments in his § 2255 motion because the ‘law was
squarely against him,’ then the savings clause applies and [a
petitioner] may proceed and pursue resentencing under
§ 2241.” Beason, 926 F.3d at 936 (quoting Webster, 784 F.3d at
1136).
Stepping back, we can plant our feet in this appeal on eas-
ier ground. There is no doubt that at the time of Chazen’s
20 No. 18-3268
§ 2255 motion in 2013, his claim for relief was foreclosed by
Eighth Circuit precedent concluding that Minnesota burglary
qualified as a violent felony for federal sentencing purposes.
See United States v. LeGrand, 468 F.3d 1077 (8th Cir. 2006). In
LeGrand the Eighth Circuit had held that the Minnesota bur-
glary statute “includes the elements of a generic burglary as
outlined in Taylor.” Id. at 1081–82. LeGrand also held that the
statute fit within the Act’s residual clause because “burglary
always has a ‘serious potential risk of physical injury to an-
other.’” Id. at 1082 (quoting United States v. Mohr, 407 F.3d 898,
901 (8th Cir. 2005)). While LeGrand assessed the statute in the
context of the Sentencing Guidelines definition of a “crime of
violence,” the Eighth Circuit treated cases on one as binding
on the other. See United States v. Sonczalla, 561 F.3d 842, 846
(8th Cir. 2009) (applying LeGrand’s analysis of the Sentencing
Guidelines to the Armed Career Criminal Act’s language).
And in 2012, the Eighth Circuit reiterated its conclusion that
Minnesota burglary qualifies as a “violent felony” for pur-
poses of the Act. See United States v. Constantine, 674 F.3d 985,
990 (8th Cir. 2012). In short, in 2013—at the time Chazen first
moved for post-conviction relief under § 2255—“the law was
squarely against” him in that it foreclosed the position he cur-
rently advances—that Minnesota burglary is not a violent fel-
ony under the Act.
We also conclude that Mathis can provide the basis for
Chazen’s § 2241 petition. While our caselaw is not a model of
clarity with respect to whether a petitioner must rely on a
“new rule,” the thrust of our precedent has focused on
whether an intervening case of statutory interpretation opens
the door to a previously foreclosed claim. Mathis fits the bill.
Mathis injected much-needed clarity and direction into the
law under the Armed Career Criminal Act: before Mathis, the
No. 18-3268 21
Eighth Circuit had held that Minnesota burglary was a violent
felony and it applied the modified categorical approach re-
gardless of whether a statute listed distinct elements or alter-
native means. See, e.g., Mathis, 786 F.3d at 1075. 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 Minne-
sota burglary is indivisible because it lists alternative means
of committing a single crime. See Van Cannon, 890 F.3d at 664;
McArthur, 850 F.3d at 938.
In this way, Mathis is “new” as a functional and practical
matter for federal inmates seeking relief from a mandatory
minimum sentence under the Act. This is particularly true for
those petitioners, like Chazen, who were convicted in the
Eighth Circuit, whose interpretation of “divisibility” was
overruled by Mathis. See, e.g., Brown v. United States, 929 F.3d
554, 559 (8th Cir. 2019) (explaining that pre-Mathis cases hold-
ing that a conviction under the Armed Career Criminal Act
qualifies as a violent felony are no longer controlling because
“[c]ontrary to the approach [the Eighth Circuit] took in those
decisions, Mathis clarified that if any of the means by which a
defendant can commit a crime fall outside the definition of the
generic offense, then it is not a violent felony, even if the de-
fendant actually committed the generic crime”).
Before Mathis it would have been futile for Chazen to ar-
gue that his Minnesota burglary convictions did not qualify
as violent felonies. It was only after the Supreme Court de-
cided Mathis that Chazen had any daylight to seek relief by
raising the claim embodied in his § 2241 petition. In these cir-
cumstances, where the government has conceded that Mathis
is retroactive and Chazen was so clearly foreclosed by the law
22 No. 18-3268
of his circuit of conviction at the time of his original § 2255
petition, we conclude that Chazen has done enough to satisfy
the savings clause requirements. This conclusion finds sup-
port in our prior observation that “[a]n independent claim
based on Mathis must be brought, if at all, in a petition under
28 U.S.C. § 2241.” Dawkins v. United States, 829 F.3d 549, 551
(7th Cir. 2016). And in light of our prior decision in Van Can-
non, it is clear that Chazen’s two Minnesota burglary convic-
tions no longer qualify as predicates under § 924(e).
III
For these reasons, we AFFIRM the district court’s judg-
ment awarding Chazen habeas relief under 28 U.S.C. § 2241.
No. 18-3268 23
BARRETT, Circuit Judge, concurring. I join the panel’s
opinion because it has support in our precedent. I write
separately, though, to express concern about the state of our
precedent. As the opinion observes, the complexity of our
cases in this area is “staggering.” We have stated the “saving
clause” test in so many different ways that it is hard to
identify exactly what it requires. And the resulting confusion
has caused our law to drift beyond the course we set in In re
Davenport. See 147 F.3d 605, 611 (7th Cir. 1998). At this point,
our definition of “inadequacy” and “ineffectiveness” under
§ 2255(e) undermines the limits that § 2255(h) imposes on
second or successive motions. Our patch for statutory cases
has grown larger than the hole we identified in the statute.
Davenport aims to fix a “glitch” in § 2255(h)(2). See Brown
v. Caraway, 719 F.3d 583, 587 n.1 (7th Cir. 2013) (quoting
Unthank v. Jett, 549 F.3d 534, 536 (7th Cir. 2008)). That
provision permits a prisoner to bring a second or successive
challenge to his detention if the motion is based on “a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” This permission does not apply, however, to a
second or successive motion based on a new statutory
interpretation—perhaps because of a congressional oversight.
As one noted treatise explains, Congress appears to have
modeled § 2255(h)(2) on § 2244(b), which governs second and
successive collateral attacks by state prisoners. HART &
WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM
1362 (Richard H. Fallon Jr. et al. eds., 7th ed. 2015). But
“Congress seems to have lost sight of the fact that federal
convicts more often can raise federal statutory claims in their
collateral attacks—notably in cases in which the federal
criminal statute under which a prisoner was convicted has
24 No. 18-3268
since been authoritatively interpreted more narrowly.” Id.
Davenport holds that § 2255’s failure to provide a federal
prisoner “any opportunity for judicial rectification of so
fundamental a defect in his conviction as having been
imprisoned for a nonexistent offense” renders § 2255
“inadequate” or “ineffective” for purposes of § 2255(e)’s
saving clause. 147 F.3d at 611. Thus, a prisoner in that
situation can seek a writ of habeas corpus under § 2241. Id.1
Davenport’s test for “inadequacy” and “ineffectiveness”
largely tracks § 2255(h)(2). That makes sense. The “structural
problem” in § 2255 is that § 2255(h)(2) doesn’t authorize
second or successive motions based on statutory claims. See
Poe v. LaRiva, 834 F.3d 770, 773 (7th Cir. 2016) (“Where
Davenport recognized a structural problem in § 2255(h) is in
the fact that it did not permit a successive petition for new
rules of statutory law made retroactive by the Supreme
Court.”). Davenport fixes that problem by effectively giving
such prisoners the relief that they would have had if
§ 2255(h)(2) had included them.
1 There is a circuit split on whether the lack of relief for statutory claims is
a feature or a bug of § 2255. Compare McCarthan v. Dir. of Goodwill Indus.-
Suncoast, Inc., 851 F.3d 1076, 1080 (11th Cir. 2017) (en banc) (holding that
a change in caselaw does not make a § 2255 motion to vacate a prisoner’s
sentence “inadequate or ineffective” under the saving clause), and Prost v.
Anderson, 636 F.3d 578, 580 (10th Cir. 2011) (rejecting a statutory
interpretation challenge under § 2241 as barred by § 2255), with United
States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013) (authorizing saving-clause
relief when an intervening statutory interpretation decision rendered the
defendant’s conduct non-criminal), Reyes-Requena v. United States, 243 F.3d
893, 903 (5th Cir. 2001) (same), In re Jones, 226 F.3d 328, 333–34 (4th Cir.
2000) (same), Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997)
(same), and In re Hanserd, 123 F.3d 922, 929–30 (6th Cir. 1997) (same).
No. 18-3268 25
Our cases, however, have phrased Davenport’s test
inconsistently, and little by little, they have stopped tracking
§ 2255(h)(2). Most significantly, we have moved away from
Davenport’s requirement that the change in law come from the
Supreme Court. 147 F.3d at 611. Sometimes we have included
that requirement in our restatement of the test. See, e.g., Light
v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014) (allowing for “a
§ 2241 challenge based on a new statutory interpretation by
the Supreme Court” (emphasis added)). Sometimes we have
not. See, e.g., Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016).
To be sure, almost all of our post-Davenport cases have dealt
with petitions based on Supreme Court decisions, so in the
mine-run of cases, nothing has turned on the source of the
rule.2 Still, we stopped explicitly saying that the rule must
come from the Supreme Court, and recently, we allowed a
petitioner to obtain relief based on a circuit-level decision.
Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019). Under our
circuit’s law, therefore, a prisoner with a second or successive
statutory claim can secure relief based on a court of appeals
case, while a prisoner with a second or successive
constitutional claim can secure relief only when the Supreme
Court acts. That is an odd state of affairs.
It also raises the stakes for the choice-of-law question that
we do not resolve today: which circuit’s law applies to a
2 The requirement that the new case be made retroactive by the Supreme
Court—as opposed to the requirement that the case have been decided by
the Supreme Court in the first place—is not a problem in Davenport cases.
Statutory interpretations that narrow the range of conduct made criminal
are always substantive and therefore retroactive. Because of that rule, a
Supreme Court decision narrowing a criminal statute applies retroactively
even if the Supreme Court doesn’t expressly say so. Prevatte v. Merlak, 865
F.3d 894, 898 (7th Cir. 2017); Montana, 829 F.3d at 784.
26 No. 18-3268
Davenport petition. Chazen’s case illustrates the point. Chazen
was convicted in the Eighth Circuit, so its law governed his
trial, sentencing, direct appeal, and first § 2255 motion. Even
now, there is no controlling law in the Eighth Circuit on which
Chazen could base a claim for relief, so a collateral attack filed
there would fail.3 But a § 2241 petition is filed in the circuit of
confinement, and seeking the benefit of Van Cannon v. United
States, 890 F.3d 656 (7th Cir. 2018), Chazen argues that we
should apply Seventh Circuit law to resolve his petition.
We should be skeptical of this argument. Applying the
law of the circuit of confinement risks recreating some of the
problems that § 2255 was designed to fix. See United States v.
Hayman, 342 U.S. 205, 210–19 (1952) (explaining that § 2255
directs post-conviction litigation to the district of conviction
to avoid the practical problems that existed before § 2255,
when all litigation was brought by a writ of habeas corpus in
the district of confinement); see also HART & WECHSLER at 1356
(cataloguing the issues courts faced before § 2255’s
enactment). We have never decided the issue, but district
courts confronting it have concluded that the law of the circuit
of conviction applies. As one court explained:
3 To be clear, while Chazen’s petition invokes Mathis v. United States as
well as Van Cannon v. United States, Mathis is not the case that justifies
granting him relief. See 136 S. Ct. 2243 (2016) and 890 F.3d 656 (7th Cir.
2018). Van Cannon is the case that renders his burglary conviction
insufficient to support the enhancement he received under the Armed
Career Criminal Act. He invokes Mathis to justify his failure to raise this
issue in his first § 2255 motion. Mathis itself does not offer him relief,
because he does not complain that the sentencing court’s decision to count
his burglary conviction was the result of the error Mathis identifies—
looking at the facts underlying his crime to conclude that he committed it
by a violent means. Chazen needs both Mathis and Van Cannon to succeed.
No. 18-3268 27
The rule ensures that the law that prevails in the
judicial circuit of any federal prisoner's
conviction, or a substantially similar law, is the
law that will be applied to the prisoner’s § 2241
petition seeking vacation of a conviction.
Application of the law of the place of conviction
is a consistent, reasonable rule, as is evidenced
by the requirement that § 2255 motions be filed
in the district of conviction. The rule [petitioner]
believes appropriate—applying the substantive
law of the place of confinement—is actually far
more arbitrary. Such a rule would base the
choice of law decision on the fortuitous
placement of a prisoner by the Bureau of
Prisons, not the more rational factor of the place
of conviction.
Hernandez v. Gilkey, 242 F. Supp. 2d 549, 554 (S.D. Ill. 2001); see
also Cano v. Warden USP–Terre Haute, No. 2:17-cv-441, 2018
WL 3389746 (S.D. Ind. July 12, 2018); Roberts v. Watson, No. 16-
cv-541, 2017 WL 6375812 (W.D. Wis. Dec. 12, 2017); accord
Burgess v. Williams, No. 4:18-cv-2643, 2019 WL 2641902 (N.D.
Ohio June 27, 2019); Eames v. Jones, 793 F. Supp. 2d 747, 749
(E.D.N.C. 2011). This position has force.
Today’s opinion avoids resolving the choice-of-law
problem because the government conceded in the district
court that Seventh Circuit law applies.4 I have reservations
4 At the time the government took this position, Seventh and Eighth
Circuit law were identical on the relevant point. Compare United States v.
McArthur, 850 F.3d 925, 939–40 (8th Cir. 2017), with Van Cannon, 890 F.3d
at 664–65. The ground shifted after the Supreme Court decided Quarles v.
United States, 139 S. Ct. 1872, 1875 (2019). At that point, McArthur was
28 No. 18-3268
about whether we should accept this concession. While we
have the discretion to accept a concession on a point of law,
we are not obligated to do so. Krieger v. United States, 842 F.3d
490, 499 (7th Cir. 2016) (“Of course we are not bound to accept
the government’s concession when the point at issue is a
question of law.”); see also Costello v. BeavEx, Inc., 810 F.3d
1045, 1061 n.4 (7th Cir. 2016) (rejecting a party’s concession on
a question of law). Here, I worry that accepting the concession
risks giving the impression that we settled the issue. Lest
there be any confusion, we have not. In a later case, this is an
issue that deserves our careful consideration; it is not one that
we should resolve for all cases based on the government’s
litigating position in this one.
Chazen’s case implicates other issues that the full court
should clarify at some point. For example, as today’s opinion
explains, we have articulated at least three different standards
for determining whether a recently decided case qualifies as
one that the petitioner could not have raised in his initial
§ 2255 motion. Maj. Op. at 18–19. We need to pick one. And
when we do, we should focus on the fact that some of our
formulations specify that the recently decided case must
announce a “new rule” without explaining what this means.
See, e.g., Light, 761 F.3d at 812 (asserting that a § 2241 petition
must be “based on a new statutory interpretation by the
Supreme Court” (emphasis added)). In particular, we have
not discussed whether “newness” in the Davenport context
bears any relationship to the “newness” requirements in
§ 2255(h)(2) and § 2255(f)(3). A “new” rule for purposes of
these subsections is one that “breaks new ground” rather than
abrogated, the choice-of-law question became outcome-determinative,
and the government backtracked.
No. 18-3268 29
clarifying established law. Headbird v. United States, 813 F.3d
1092, 1095 (8th Cir. 2016) (quoting Teague v. Lane, 489 U.S. 288,
301 (1989)) (explaining that “newness” has the same meaning
in both § 2255(h)(2) and § 2255(f)(3)). Other circuits have held
that Mathis, which the Supreme Court characterized as
dictated by Taylor, does not satisfy this test. See, e.g.,
Washington v. United States, 868 F.3d 64, 65–66 (2d Cir. 2017);
Arazola-Gates v. United States, 876 F.3d 1257, 1259 (9th Cir.
2017); In re Conzelman, 872 F.3d 375, 376–77 (6th Cir. 2017);
United States v. Taylor, 672 F. App’x 860, 863 (10th Cir. 2016).
Thus, if the Davenport test uses “new” in the standard habeas
sense that it has in § 2255(h)(2) and § 2255(f)(3), Chazen’s
claim presumably cannot succeed. See Guenther v. Williams,
No. 17-cv-231, 2017 WL 5054731 (W.D. Wis. Nov. 2, 2017)
(holding that a Mathis claim is not cognizable under § 2241
because Mathis applied established law rather than
announcing a “new” rule).
But as Chazen points out, we have not expressly embraced
this definition of “new” for Davenport petitions—and we have
sometimes implied that a “new” case is nothing more than
one that opens a previously foreclosed position. If that’s right,
cases like Mathis, which correct misapplications of “old”
rules, qualify. Maybe that is the position that we want to take,
but if so, we should expressly adopt and defend it. Doing so
would require us to think through the implications of
forgoing a “newness” requirement in this saving clause
context. For example, that position might mean that
§ 2255(f)’s statute of limitations renders § 2255 “inadequate
and ineffective” when it blocks even a first motion relying on
Mathis. But see Boatwright v. Warden Fairton FCI, 742 F. App’x
701, 704 (3d Cir. 2018) (rejecting this position).
30 No. 18-3268
In sum, this body of law is plagued by numerous complex
issues. This might not be the case in which to untangle them,
but at some point, we need to give litigants and district courts
better guidance.