Chazen v. Williams

TODD RICHARD CHAZEN, Petitioner, v. LOUIS WILLIAMS II, Respondent

17-cv-447-jdp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

July 25, 2018

OPINION & ORDER

This is a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Todd Richard Chazen is challenging the sentence enhancement he received under the Armed Career Criminal Act, 18 U.S.C. § 924(e), for having three or more convictions "for a violent felony or a serious drug offense." Specifically, Chazen says he no longer has three convictions that satisfy § 924(e) in light of United States v. Mathis, 136 S. Ct. 2243 (2016), and Johnson v. United States, 135 S. Ct. 2551 (2015). For the reasons explained below, I will grant Chazen's petition and transfer the case to the sentencing court for resentencing.

BACKGROUND

In March 2011, a jury found Chazen guilty of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). At the sentencing hearing on July 11, 2011, the court considered whether Chazen qualified for an enhancement under § 924(e) in light of five previous convictions, all from Minnesota state court: two convictions for second-degree burglary, a conviction for second-degree assault, a conviction for second-degree manufacture of a controlled substance, and a conviction for escape from custody. In its sentencing memorandum, the government stated that Chazen's two burglary convictions should not be counted separately and that the drug offense did not qualify as a serious drug offense, but that the remaining three convictions were predicate offenses under § 924(e).

The sentencing court concluded that Chazen had "at least four" past convictions that were either a violent felony or serious drug offense, but did not specify what the convictions were. United States v. Chazen, No. 10-cr-332 (D. Minn.), Dkt. 71, at 10-11. The court imposed a 252-month term of imprisonment. Id. at 80.

On appeal, Chazen contended that his escape conviction was not a predicate offense under § 924(e). In opposing Chazen's appeal, the government withdrew its concessions about the burglary offense and the drug offense. The Court of Appeals for the Eighth Circuit rejected Chazens's contention about the escape conviction and affirmed the sentence. United States v. Chazen, 469 F. App'x 508, 509 (8th Cir. 2012).

In 2013, Chazen filed a motion under 28 U.S.C. § 2255, contending that his escape conviction did not qualify as a predicate offense in light of Descamps v. United States, 570 U.S. 254 (2013). He also said that the government could not rely on the drug conviction and one of the burglary convictions in light of its concession at sentencing. The court denied the motion, rejecting Chazen's argument under Descamps and concluding that Chazen's other arguments were procedurally defaulted. Chazen, No. 10-cr-332, Dkt. 89.

In May 2016, Chazen sought authorization from the Court of Appeals for the Eighth Circuit to file a second § 2255 motion. Chazen v. United States, No. 16-2231, Dkt. 2 (8th Cir. May 18, 2016). Before the court of appeals ruled on his application, he also filed a second § 2255 motion with the sentencing court. Chazen, No. 10-cr-332, Dkt. 92. He said that he was no longer an armed career criminal under Johnson v. United States, 135 S. Ct. 2551 (2015). In response, the government agreed that Chazen's conviction for escape did not qualify as apredicate offense in light of Johnson, but maintained that Chazen still qualified for a § 924(e) enhancement as a result of the other convictions. The court of appeals denied Chazen's application without explanation and the sentencing court denied the § 2255 motion for lack of jurisdiction. Chazen, No. 10-cr-332, Dkt. 93 and Dkt. 95.

ANALYSIS

The parties agree that the validity of Chazen's sentence enhancement under § 924(e) rests on his two burglary convictions. This is because the parties agree that Chazen's convictions for escape and manufacture of a controlled substance no longer qualify as predicate offenses under § 924(e) in light of intervening Supreme Court precedent. And Chazen appears to concede that his assault conviction is a violent felony under § 924(e). Because three predicate offenses are required for an enhancement under § 924(e), Chazen is entitled to resentencing if he can prevail on his claim that his two burglary convictions do not qualify as violent felonies in light of Mathis and Johnson.¹

Section 924(e) defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that

• "has as an element the use, attempted use, or threatened use of physical force against the person of another";

• "is burglary, arson, or extortion, [or] involves the use of explosives"; or

• "otherwise involves conduct that presents a serious potential risk of physical injury to another."

18 U.S.C. § 924(e)(2)(B). Minnesota defines second-degree burglary as follows: "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 burglary in the second degree" if certain aggravating factors are present. Minn. Stat. § 609.582(2)(a).

There is no dispute that Minnesota's second-degree burglary statute does not satisfy the first definition of "violent felony." And there appears to be no dispute that the third definition, the so-called "residual clause," cannot apply because the Supreme Court held in Johnson that the residual clause was unconstitutionally vague. This leaves the second definition. Although that definition lists "burglary" as a violent felony, a state burglary statute qualifies as burglary under § 924(e) only if the statute's elements match the elements of "generic" burglary, defined as "an unlawful 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). If the state law is broader than that, it does not qualify. Id.

Chazen contends that his second-degree burglary conviction does not qualify as a generic burglary under § 924(e)(2)(B) in light of Mathis. That case involved the distinction between criminal statutes that list alternative elements (thus creating multiple offenses) and statutes that create a single offense with alternative means of satisfying an element of that offense. Mathis, 136 S. Ct. at 2250-51, 2251 n.1. If a statute lists alternative elements, it is "divisible" and the court can employ the "modified categorical approach," which means that a court can look beyond the conviction itself to determine whether the prisoner's conviction qualifies as a generic burglary. Id. at 2249. But if the statute defines a single offense with alternative means of satisfying a particular element, it is "indivisible" and the court mustemploy the "categorical approach," which means that the court is limited to comparing the elements of the generic crime to the elements of the crime that is the basis for the conviction. Id. at 2251. Chazen says that Minnesota's second-degree burglary statute is indivisible and is broader than generic burglary because the statute permits a conviction even if the defendant did not have the intent to commit a crime.

The issues in dispute narrowed significantly after the parties finished briefing. The Court of Appeals for the Seventh Circuit held that a conviction for second-degree burglary in Minnesota does not qualify as a violent felony under the § 924(e), for the reason stated by Chazen. Van Cannon v. United States, 890 F.3d 656, 665 (7th Cir. 2018). This is the same conclusion that the Court of Appeals for the Eighth Circuit reached a few months earlier. United States v. Crumble, 878 F.3d 656, 661 (8th Cir. 2018).

Van Cannon would seem to resolve this case. If Chazen's burglary convictions are taken out of the mix, this leaves only one predicate offense. But the government raises an alternative argument that Chazen's claim is barred under the so-called "savings clause" in § 2255, which states that a federal prisoner may not bring a habeas petition under § 2241 unless "the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). The government says that Chazen cannot satisfy § 2255(e) because he could have raised his claim in his § 2255 motion, but failed to do so.²

There is no dispute that Chazen is raising his claim for the first time now. And both sides agree that a prisoner can forfeit his right to bring a § 2241 petition by failing to raise the claim earlier. But the parties disagree about the standard. According to the government, Chazenmust show that, since he filed his § 2255 motion, "a new case overturned binding circuit precedent." Dkt. 13, at 14. Chazen's view of the standard is not as clear. He alternatively states that he "needs to show that he's relying on Mathis," Dkt. 15, at 10, that "binding precedent set the standard under which the particular state offense was a predicate," id. at 12, and that "there was binding law under which the relevant offense was an ACCA predicate," id. at 15.

The Court of Appeals for the Seventh Circuit has not described the requirement at issue in great detail.³ In some instances, the court simply says that a petitioner must show that he is relying on a "new rule . . . [that] could not have been invoked in [an] earlier proceeding." E.g., Camacho v. English, 872 F.3d 811, 813 (7th Cir. 2017); Prevatte v. Merlak, 865 F.3d 894, 897 (7th Cir. 2017); Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016). See also Davis v. Cross, 863 F.3d 962, 964 (7th Cir. 2017) ("[T]he new rule must be previously unavailable."); Poe v. LaRiva, 834 F.3d 770, 773 (7th Cir. 2016) ("[T]he prisoner must show that he relies on a retroactive decision that he could not have invoked in his first § 2255 motion."). But in other instances, sometimes in the same case, the court has stated that the petitioner must show that his claim...