Beason v. Williams, 17-cv-406-wmc

• Decision Date: 29 November 2018
• Docket Number: 17-cv-406-wmc
• Parties: DEANDRE BEASON, Petitioner, v. LOUIS WILLIAMS II, Respondent.
• Court: U.S. District Court — Western District of Wisconsin

DEANDRE BEASON, Petitioner, v. LOUIS WILLIAMS II, Respondent.

17-cv-406-wmc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

November 29, 2018

OPINION & ORDER

Petitioner Deandre Beason, a federal prisoner incarcerated in this district at the Federal Correctional Institution in Oxford, Wisconsin, seeks a writ of habeas corpus under 28 U.S.C. § 2241. Beason seeks relief on the basis that his fifteen-year enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), was improper in light of the Supreme Court's decision in United States v. Mathis, 136 S. Ct. 2243 (2016), and the Seventh Circuit's decision in United States v. Spencer, 739 F.3d 1027 (7th Cir. 2014). The court directed the government to answer his petition, and the parties have fully briefed their positions. Having reviewed their positions, the court will deny Beason's petition, but will grant him a certificate of appealability.

BACKGROUND

A. Beason's plea and sentence

On September 15, 2009, a federal grand jury in the Eastern District of Wisconsin charged Beason with possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). United States v. Beason, No. 09-cr-186 (E.D. Wis.). Beason initially pled guilty, and the court set the case for sentencing. The presentence report ("PSR") determined that Beason was subject to the fifteen-year enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), because he had three convictions that qualified as either violent felonies or serious drug offenses as defined by § 924(e)(2). Those predicate offenses were a Wisconsin juvenile adjudication for armed robbery in violation of Wis. Stat. § 943.32(2), and two Wisconsin drug offenses.

Seeking to oppose the ACCA enhancement, Beason was permitted to withdraw his plea agreement; he then entered into a modified plea agreement that permitted the parties to argue the applicability of the enhancement at sentencing. While Beason ultimately objected to the PSR, he did not challenge the inclusion of his juvenile robbery adjudication as a predicate offense. Instead, Beason argued that since one of his drug offenses, a Class G felony, carried a maximum penalty of ten years imprisonment -- not ten years or more as prescribed by § 924(e)(2) -- that conviction did not qualify as a predicate offense. On September 14, 2011, Judge Clevert rejected Beason's argument, concluded that the ACCA enhancement applied, and sentenced him to 180 months imprisonment.

B. Beason's direct appeal

While Beason pursued an appeal, his appointed appellate attorney ultimately filed an Anders brief, outlining Beason's desired arguments and explaining why each lacked merit. Among the issues Beason sought to raise were (1) a challenge to the inclusion of his juvenile adjudication as an ACCA predicate, and (2) a claim that his trial counsel was ineffective in failing to pursue that objection.

On July 23, 2012, the Seventh Circuit agreed with Beason's attorney and dismissedthe appeal, reasoning "error or not, an appellate claim would be frivolous because Beason did not object to the court's use of his juvenile adjudication" United States v. Beason, 493 F. App'x 747, 750 (7th Cir. 2002). However, in doing so, the court acknowledged the possible merit of that claim. In particular, the court recognized that "the ACCA counts only those acts of juvenile delinquency 'involving the use or carrying of a firearm, knife, or destructive device.'" Id. at 749. Then court further noted that while it had not considered how courts should analyze whether juvenile offenses "involved" those weapons,

five other circuits have said that judges should use the same categorical approach applicable to adult convictions. See United States v. Nevels, 490 F.3d 800, 806-09 (10th Cir.2007); United States v. Wells, 473 F.3d 640, 646-50 (6th Cir.2007); United States v. Kirkland, 450 F.3d 804, 806-08 (8th Cir.2006); United States v. Burge, 407 F.3d 1183, 1187 (11th Cir.2005); United States v. Richardson,313 F.3d 121, 123-28 (2d Cir.2003).

In fact, however, these circuits have not limited juvenile offenses to those where the crime, if committed by an adult, would have as a statutory element the use of a gun, knife, or explosive. Instead, these circuits understand the "categorical approach" (or "modified categorical approach") to mean in this context that sentencing courts should look only to certain judicial records, see Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 161 L.Ed.2d 205 (2005), in deciding if the juvenile offense was committed in a manner involving the use or carrying of a firearm, knife, or destructive device. See, e.g., Burge, 407 F.3d at 1187 (permitting district court to review charging document, terms of plea agreement, transcript of colloquy in which defendant confirmed factual basis for plea, or other comparable judicial record). If we followed that approach here, then the district court arguably committed error, since "armed" robbery can be committed under the Wisconsin statute without a gun, knife, or explosive, see Wis. Stat. § 943.32(2), and apparently the government offered none of the sources the court could use, consistently with Shepard, to decide if Beason's accomplice did in fact wield a firearm. (It does not matter that an accomplice rather than Beason was holding the gun. See Nevels, 490 F.3d at 808.).

Id. at 749-50. Nevertheless, the court concluded that it could not consider this issue unless Beason's trial counsel were found to have been ineffective in failing to object to thedistrict court's use of the juvenile adjudication, a question not normally cognizable on a direct appeal, but rather raised in a post-conviction motion under 28 U.S.C. § 2255. Id. (citing Massaro v. United States, 538 U.S. 500, 504-05 (2003) (claims of ineffective assistance of counsel are not cognizable on direct appeal because the appellate record lacks the necessary factual development for such a claim)).

C. Beason's § 2255 motion

Following the Seventh Circuit's suggestion, Beason filed a pro se motion under § 2255 on July 12, 2013, arguing that his trial attorney was ineffective for not objecting to the use of the juvenile adjudication to enhance his sentence under the ACCA, arguing in particular that "[u]nder Wisconsin statute § 943.32(2) armed robbery can be committed without a gun, knife, or explosive; thus, the statute criminalizes conduct that does not fall within the ACCA's definition of violent felony..." Beason v. United States, No. 13-cv-786, dkt. #2, at 20 (E.D. Wis.) Beason also echoed the Seventh Circuit's analysis, arguing that if his counsel had challenged the juvenile conviction, the court "would have taken a categorical approach or a modified categorical approach, rather than taking no approach at all," citing Shepard, as well as Taylor v. United States, 495 U.S. 575, 602 (1990), in which the United States Supreme Court established the categorical approach. Id. (dkt. #2) at 19.

On February 18, 2015, the district court denied the motion, concluding that Beason's counsel was not constitutionally deficient because, at the time the judge was deciding the § 2255 motion, Seventh Circuit precedent suggested that: (1) the modified categorical approach was appropriate; and (2) the charging documents related to Beason'sjuvenile adjudication showed that he possessed a gun at the time of the offense. Id. (dkt. #16) at 6-7.

In reaching this conclusion, Judge Clevert reviewed the relevant case law for employment of the modified categorial approach, beginning with United States v. Woods, 576 F.3d 400 (7th Cir. 2009), in which the Seventh Circuit concluded that the modified categorical approach only applies when a statute is divisible -- that is, when the statutory language punishes some conduct that would qualify as a "violent felony" and some conduct that would not. Consistent with that case, Judge Clevert noted the sentencing court was authorized to consult additional materials to determine under which portion of the statute a defendant was convicted. Beason, No. 13-cv-786 (dkt. #16) at 5 (citing Woods). Judge Clevert further recognized that while Beason's § 2255 motion was pending, the United States Supreme Court adopted a similar divisible/indivisible distinction in Descamps v. United States, 133 S. Ct. 2276 (2013):

The court held that where there are alternative paths with different elements to reach a conviction, the court may use the "modified categorial approach" to determine whether the offense qualifies as one of the "generic" violent felonies listed in 18 U.S.C. § 924(e)(2)(B)(ii) for purposes of the ACCA, 18 U.S.C. § 924(e). Id. at 2281. ... On the other hand, the court must use the "categorical approach" where the criminal statute is not divisible inasmuch as it contains a single set of elements without alternative ways to reach a conviction. Id. at 2282.

Beason, No. 13-cv-786 (dkt. #16) at 6.

Still, Judge Clevert neither evaluated whether the applicable Wisconsin statutes were indivisible or divisible, nor whether Wisconsin's definition of dangerous weapon was overly broad. Instead, he turned directly to the Seventh Circuit's dicta in its decisionresolving Beason's appeal, noting that each decision cited by the Seventh Circuit used the modified categorical approach and "relied on the juvenile delinquency petitions in reaching their decisions." Id. at 7. Adopting that framework, Judge Clevert referenced the PSR's description of Beason's juvenile adjudication to conclude that it qualified as a violent felony. Id. at 7. While he denied Beason relief on that basis, Judge Clevert also granted him a certificate of appealability because:

the Seventh Circuit flagged the issue regarding Beason's juvenile adjudication on direct appeal and has admittedly not considered how sentencing courts should analyze whether juvenile crimes "involved" a firearm, knife, or destructive device. In other words, reasonable jurists could debate the application of

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