Beason v. Marske

• Citation: 926 F.3d 932
• Decision Date: 24 June 2019
• Docket Number: No. 18-3575,18-3575
• Parties: Deandre J. BEASON, Petitioner-Appellant, v. Matthew MARSKE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

926 F.3d 932

Deandre J. BEASON, Petitioner-Appellant,

v.Matthew MARSKE, Respondent-Appellee.

No. 18-3575

United States Court of Appeals, Seventh Circuit.

Argued May 14, 2019

Decided June 24, 2019

Shelley M. Fite, Attorney, FEDERAL DEFENDER SERVICES OF WISCONSIN, INC., Madison, WI, for Petitioner - Appellant.

Jonathan H. Koenig, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, for Respondent - Appellee.

Before Flaum, Kanne, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

The Armed Career Criminal Act, housed in § 924(e) of the Federal Criminal Code, mandates a minimum 15-year sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a "serious drug offense" or "violent felony." In 2009, Deandre Beason pleaded guilty to being a felon in possession of a firearm and was sentenced under the Act. Now, roughly a decade later, the parties agree that under current law none of Beason’s three prior convictions count as either violent felonies or serious drug offenses—meaning Beason no longer qualifies as an armed career criminal.

But this observation only gets us so far, as this case turns instead on whether Beason has available a procedural means to secure resentencing. He did not prevail on challenging his conviction and sentence on direct appeal. Nor did he succeed in his pursuit of post-conviction relief under 28 U.S.C. § 2255. So he now turns to 28 U.S.C. § 2241. Whether he can use § 2241 to pursue what is often called traditional habeas relief turns under our caselaw on whether the claims he now raises in his current petition were foreclosed to him at the time of his initial § 2255 motion. If so, the law would deem Beason’s prior § 2255 proceeding inadequate and thereby allow him to seek resentencing through and pursuant to § 2241.

We conclude that at least one of Beason’s grounds for relief—pertaining to two of his three prior convictions—was foreclosed to him at the time of his § 2255 motion. And, because Beason is correct that those two offenses cannot serve as qualifying offenses, he no longer has the three offenses qualifying him as an armed career criminal. While the remainder of the opinion travels the procedural and legal maze to this conclusion, the upshot is that we reverse and remand for the petition to be granted and Beason to be resentenced.

I

Following his 2009 guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Beason proceeded to sentencing. He received the 15-year mandatory minimum required by Congress in the Armed Career Criminal Act. In imposing this sentence, the district court determined that Beason’s juvenile adjudication for armed robbery under Wisconsin law and his two Wisconsin drug offenses meant that he had the necessary three prior convictions for either a "serious drug offense" or a "violent felony" to qualify as an armed career criminal.

The sentencing court determined that Beason’s juvenile conviction for armed robbery was a qualifying violent felony. Under the Armed Career Criminal Act, a juvenile adjudication counts as a "violent felony" if the same offense would be a violent felony if committed by an adult and the offense involves "the use or carrying of a firearm, knife, or destructive device." 18 U.S.C. § 924(e)(2)(B). The sentencing court also found that Beason’s two Wisconsin drug offenses, which carried maximum sentences of 12.5 and ten years, qualified as "serious drug offenses[s]." Under the Act, a "serious drug offense" includes state drug offenses "for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). At sentencing, Beason objected to the use of his drug offenses as qualifying offenses but made no similar argument as to the use of his juvenile armed robbery offense.

On direct appeal in this court, Beason’s counsel submitted an Anders brief, explaining that he could not identify any non-frivolous issues to pursue on appeal. His counsel considered—but rejected—any possible attack on the sentencing court’s conclusion that Beason’s three prior convictions qualified him as an armed career criminal.

We agreed and dismissed Beason’s appeal. See United States v. Beason , 493 F. App'x 747, 750 (7th Cir. 2012). First, as to Beason’s drug offenses, we rejected the line of argument that Beason had advanced at sentencing that one of his drug convictions—the less serious of the two—did not qualify as a "serious drug offense" because it carried a maximum penalty of ten years as opposed to the "ten years or more" required by the Armed Career Criminal Act. Id. at 748 (quoting 18 U.S.C. § 924(e)(2)(A) ). It was enough, we concluded, that the offense carried a maximum penalty of at least ten years. See id. We therefore agreed with Beason’s counsel that it would be "frivolous" to contend on appeal that his prior drug offenses carried sentences too short to qualify as serious drug offenses. Id.

We then considered whether Beason’s juvenile adjudication for armed robbery qualified as a "violent felony" within the meaning of § 924(e). See id. at 749. We saw this as a closer call because armed robbery in Wisconsin could be committed without a gun, knife, or explosive, as required to render a juvenile offense a violent felony under the Act. See id. at 750. But because Beason had not objected at sentencing to the use of his juvenile adjudication as a qualifying offense for armed career criminal purposes, we applied plain error review and declined to vacate the 15-year mandatory minimum sentence. See id.

Having no success on direct appeal, Beason then pursued post-conviction relief. In 2013 he invoked 28 U.S.C. § 2255 and challenged his juvenile adjudication for armed robbery as a qualifying violent felony. In his § 2255 motion, however, Beason made no arguments about the characterization of his prior drug offenses as serious drug offenses. The district court denied relief. Rather than confine itself to the Wisconsin armed robbery statute, the court reviewed the juvenile petition from Beason’s juvenile adjudication and determined the offense conduct entailed Beason participating in a robbery involving a gun and thereby committing a "violent felony" within the meaning of the Armed Career Criminal Act.

Four years later, and having witnessed certain intervening changes in the law, Beason again pursued post-conviction relief, this time by filing a petition under 28 U.S.C. § 2241. He contended that recent changes in law interpreting the Armed Career Criminal Act demonstrated that none of his three prior crimes counted as qualifying offenses. First, relying on our opinion in United States v. Spencer , 739 F.3d 1027 (7th Cir. 2014), Beason argued that neither of his two Wisconsin drug offenses carried a sentence long enough to qualify as a "serious drug offense" under the Act. Next, relying on the Supreme Court’s 2016 decision in Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604, he argued that his prior juvenile adjudication for armed robbery could not count as a "violent felony" under the Act.

In the district court and now on appeal, everyone agrees that Beason is right on the merits. Current caselaw makes clear that neither Beason’s drug offenses nor his juvenile adjudication for armed robbery can be used to classify him as an armed career criminal.

But that is not the end of the matter. The question is whether Beason, having already availed himself of a collateral attack under § 2255, can now seek relief under § 2241, the traditional habeas remedy. Section 2255 contains what the law refers to as a "savings clause"—a provision that, as its name implies, preserves and allows the pursuit of habeas corpus relief if the petitioner satisfies particular conditions. The district court denied relief, concluding that the savings clause was not available to Beason because he could have raised the exact two arguments he now pursues under § 2241 in his first collateral attack under § 2255.

II

As a general matter, § 2255 provides the exclusive means for a federal prisoner to collaterally attack his conviction or sentence. But the savings clause in § 2255(e) preserves and authorizes access to traditional habeas corpus relief under 28 U.S.C. § 2241 if the remedy available under § 2255 was "inadequate or ineffective to test the legality of his detention." Our decision in In re Davenport , 147 F.3d 605 (7th Cir. 1998) examined the scope of this provision. There we determined that whether § 2255 was inadequate or ineffective depends on whether a proceeding under that section afforded the petitioner "a reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence." Id. at 609 ; see also Webster v. Daniels , 784 F.3d 1123, 1136 (7th Cir. 2015) (en banc ) (reinforcing Davenport as the law of the circuit and articulating the same point). In considering Beason’s appeal, we accept Davenport as the law of this circuit, as we must.

In Davenport ’s wake, we have developed a three-part test implementing Davenport ’s holding. See Montana v. Cross , 829 F.3d 775, 783 (7th Cir. 2016). A petitioner who seeks to satisfy § 2255(e) ’s savings clause and thereby pursue relief under § 2241 must establish that (1) the claim relies on a statutory interpretation 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. See id.

The government agrees with Beason that he meets the first and third requirements. Notably, the government conceded below—and does not argue to the contrary on appeal—that a circuit court statutory interpretation case like Spencer could satisfy the first prong of the savings clause test. This position finds some support in our caselaw. See Webster ...