Samuel Hogsett v. Thomas Lillard

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2182
SAMUEL HOGSETT,
Petitioner-Appellant,
v.
THOMAS LILLARD,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 21-cv-1085 — Stephen P. McGlynn, Judge.
____________________
ARGUED DECEMBER 6, 2022 — DECIDED JULY 7, 2023
____________________
Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. In 2007, a jury convicted Samuel
Hogsett of three federal crimes, including being a felon in pos-
session of a firearm. See 18 U.S.C. § 922(g)(1). The sentencing
court found that Hogsett was an armed career criminal be-
cause he had three prior convictions for violent felonies. As a
result, he faced a 15-year mandatory minimum sentence on
his § 922(g) conviction instead of the then-applicable 10-year
maximum. See 18 U.S.C. § 924(a)(2), (e)(1) (2006). The court
2 No. 22-2182
sentenced him to 295 months’ imprisonment on that count. In
2021, long after Hogsett’s convictions became final, the Su-
preme Court interpreted “violent felony” in § 924(e) to ex-
clude crimes that can be committed with a mens rea of reck-
lessness. Borden v. United States, 141 S. Ct. 1817, 1834 (2021)
(plurality opinion). Hogsett thinks one of the convictions sup-
porting his sentencing enhancement could have been commit-
ted recklessly, so he asserts that Borden establishes that his
§ 922(g) sentence is above the statutory maximum. Hogsett
wants to bring a collateral challenge to that sentence.
To collaterally attack a conviction or sentence, a federal
prisoner files a motion to vacate under 28 U.S.C. § 2255, not a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Mangine v. Withers, 39 F.4th 443, 447 (7th Cir. 2022).
The problem for Hogsett is that he filed a § 2255 motion in
2010, and a prisoner can only file another § 2255 motion in one
of two specific circumstances:
A second or successive motion must be certified … by
a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme Court,
that was previously unavailable.
§ 2255(h). Thus, “[i]ntervening Supreme Court statutory in-
terpretation decisions … are outside the ambit of § 2255(h).”
Mangine, 39 F.4th at 447. Because he did not satisfy the
No. 22-2182 3
requirements to file a successive § 2255 motion, Hogsett filed
a § 2241 habeas petition instead.
Hogsett argued that he was eligible to file a § 2241 habeas
petition under § 2255(e), the “saving clause.” Under § 2255(e),
“[a]n application for a writ of habeas corpus in behalf of a
[federal] prisoner” who previously filed a § 2255 motion
“shall not be entertained … unless it … appears that the rem-
edy by [§ 2255] motion is inadequate or ineffective to test the
legality of his detention.” Since In re Davenport, 147 F.3d 605(7th Cir. 1998), we have interpreted § 2255(e) to allow a pris-
oner to seek habeas relief under § 2241 if:
(1) [his] claim relies on a statutory interpretation case,
not a constitutional case and thus could not have been
invoked by a successive § 2255 motion; (2) [he] 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.
Mangine, 39 F.4th at 447 (quoting Beason v. Marske, 926 F.3d
932, 935 (7th Cir. 2019)). The district court denied Hogsett’s
§ 2241 petition, holding that even if Hogsett’s sentence on his
§ 922(g) conviction was above the statutory maximum, there
could be no miscarriage of justice because his total sentence
was within the advisory Guidelines range. Hogsett appealed.*
While Hogsett’s appeal was pending, the Supreme Court
decided Jones v. Hendrix, holding that § 2255(e) “does not per-
mit a prisoner asserting an intervening change in statutory
* We thank Alison Guernsey and the Federal Criminal Defense Clinic
at the University of Iowa College of Law for representing Hogsett and
then-law-student Paige Roff for ably arguing the appeal on his behalf.
4 No. 22-2182
interpretation to circumvent [the] restrictions on second or
successive § 2255 motions by filing a § 2241 petition.” 599 U.S.
----, 2023 WL 4110233, at *5 (June 22, 2023). Instead, the saving
clause is designed to “cover[] unusual circumstances in which
it is impossible or impracticable for a prisoner to seek relief
from the sentencing court” in a § 2255 motion. Id. at *6 (giving
examples including the dissolution of the sentencing court).
The Court abrogated Davenport and its counterparts in other
circuits because they were an improper end-run around
§ 2255(h)’s limitations on filing second or successive motions.
Id. at *7–8. “The inability of a prisoner with a statutory claim
to satisfy” § 2255(h)’s requirements, the Court explained,
“does not mean that he can bring his claim in a habeas petition
under the saving clause. It means that he cannot bring it at
all.” Id. at *9.
The parties agree that Jones abrogates Davenport and con-
trols this case. Hogsett previously filed a § 2255 motion, and
he now wishes to invoke Borden to mount a new collateral at-
tack on his sentence. Because Borden is a statutory interpreta-
tion decision, § 2255(h) does not permit Hogsett to file a suc-
cessive § 2255 motion, and Jones forecloses the possibility of
filing a § 2241 habeas petition via § 2255(e). 2023 WL 4110233,
at *9. The district court applied Davenport and denied
Hogsett’s § 2241 petition on the merits, but Jones holds that
federal courts lack jurisdiction to consider habeas petitions
filed by federal prisoners in Hogsett’s position. Id. We there-
fore vacate the district court’s judgment and remand with in-
structions to dismiss for lack of subject-matter jurisdiction.