Brown v. Caraway

• Citation: 719 F.3d 583
• Decision Date: 10 May 2013
• Docket Number: No. 12–1439.,12–1439.
• Parties: Royce BROWN, Petitioner–Appellant, v. John F. CARAWAY, Warden, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

719 F.3d 583

Royce BROWN, Petitioner–Appellant,
v.
John F. CARAWAY, Warden, Respondent–Appellee.

No. 12–1439.

United States Court of Appeals,
Seventh Circuit.

Argued Jan. 18, 2013.
Decided May 10, 2013.

[719 F.3d 584]

Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, Adam G. Unikowsky (argued), Attorney, Jenner & Block LLP, Washington, DC, for Petitioner–Appellant.

Michael A. Rotker (argued), Attorney, Department of Justice, Washington, DC, for Respondent–Appellee.

Before POSNER, FLAUM, and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

In 1996, a jury in the district court for the District of Delaware convicted Royce Brown of one count of possession with intent to distribute cocaine base and one count of possession of a firearm by a felon. At sentencing, the district court classified Brown as a “career offender” under U.S.S.G. § 4B1.1. Brown filed a timely 28 U.S.C. § 2255 motion arguing that “counsel was ineffective for failure to object to his sentencing as a career offender which resulted in his sentence being a minimum of 360 months instead of between 262 and 327 months.” The district court rejected

[719 F.3d 585]

this argument, and the Third Circuit denied a certificate of appealability.

Now incarcerated in Indiana, Brown filed a pro se habeas petition under 28 U.S.C. § 2241 in the Southern District of Indiana, contending that under Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), his prior Delaware conviction for Arson in the Third Degree did not qualify as a crime of violence under U.S.S.G. § 4B1.1. The district court dismissed his habeas petition sua sponte, reasoning that “the savings clause embodied in 2255(e) requires a claim of actual innocence directed to the underlying conviction, not merely the sentence.” Brown now appeals, aided by appointed counsel.

As an initial matter, the district court erred in concluding that challenges to a sentence (rather than the underlying conviction) are categorically barred under 28 U.S.C. § 2241. On the merits, Brown is entitled to relief under § 2241. Under Begay, Brown's prior conviction for Arson in the Third Degree under Delaware law does not qualify as “generic” arson under the enumerated crimes clause of the career offender Guideline, nor is it covered by the residual clause. We therefore reverse the decision of the district court and hold that Brown is entitled to relief under § 2241.

I. Background

In 1995, officers conducting a probation search of Brown's residence discovered 345 grams of crack cocaine, $45,000 in currency, and a loaded .380 semiautomatic handgun. On June 27, 1996, a jury in the district court for the District of Delaware convicted Brown of one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(a), and one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(a)(1).

The presentence investigation report recommended sentencing Brown as a career offender under U.S.S.G. § 4B1.1, characterizing his two prior felony convictions—one for second-degree assault in violation of 11 Del. C. § 612(a)(3); the other for Arson in the Third Degree in violation of 11 Del. C. § 801—as “crimes of violence.” Brown's designation as a career offender resulted in an offense level of 37 and a Guidelines range of 360 months to life. Absent the career offender enhancement, Brown faced an offense level of 34, which when combined with Brown's criminal history category of VI, would have resulted in a Guidelines range of 262 to 327 months. The court rejected Brown's argument that his assault conviction was not a crime of violence and adopted the probation officer's recommendation. The court imposed a 360–month sentence on the drug charge and a 120–month sentence on the gun charge to run concurrently, with five years of supervised release. The district court imposed this sentence prior to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and therefore viewed the application of the Guidelines range as mandatory. The Third Circuit affirmed.

In 2000, Brown filed a timely motion under 28 U.S.C. § 2255 to vacate his sentence. He argued that his counsel was ineffective for failing to object to his sentencing as a career offender, which resulted in a substantially higher Guidelines range. The district court rejected this argument, holding that the “record clearly supports a finding of petitioner's status as a career offender,” and accordingly denied his motion as well as a certificate of appealability. The Third Circuit also denied a certificate of appealability.

[719 F.3d 586]

Brown is currently incarcerated in the federal penitentiary in Terre Haute, Indiana. On February 7, 2012, he filed a pro se habeas petition under 28 U.S.C. § 2241 in the District Court for the Southern District of Indiana. He argued that under Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), his prior Delaware conviction for Arson in the Third Degree did not qualify as a “crime of violence” under U.S.S.G § 4B1.1. He claimed that therefore he was “actually innocent of being a career offender” and accordingly that the sentencing court should have used a Guidelines range of 262 to 327 months, rather than 360 months to life.

Two weeks after Brown filed this petition, and before he served the Government, the district court dismissed the habeas petition sua sponte. The court reasoned that “the savings clause embodied in 2255(e) requires a claim of actual innocence directed to the underlying conviction, not merely the sentence.” It noted that Brown did not contend that he was actually innocent of his underlying crimes, rather, he contended only that the career offender designation should not have been applied to him. The court therefore dismissed the petition without soliciting any response from the Government.

Brown filed a timely notice of appeal. Because Brown never served the Government with the petition, the Government filed a motion for an order of non-involvement with the appeal, which we granted. However, on November 19, 2012, we vacated the non-involvement order and requested that the respondent file a brief on or before December 28, 2102. The Government complied.

II. Discussion

We review the denial of a § 2241 petition de novo. Hill v. Werlinger, 695 F.3d 644, 648 (7th Cir.2012). Federal prisoners who seek to bring collateral attacks on their conviction or sentences must ordinarily bring an action under 28 U.S.C. § 2255, “the federal prisoner's substitute for habeas corpus.” Brown v. Rios, 696 F.3d 638, 640 (7th Cir.2012). However, a federal prisoner may petition under § 2241 “if his section 2255 remedy ‘is inadequate or ineffective to test the legality of his detention.’ ” Id. (citing § 2255(e), the “Savings Clause”). In re Davenport, 147 F.3d 605 (7th Cir.1998), established three conditions for this exception to apply. Id. at 610–12. First, the prisoner must show that he relies on a “statutory-interpretation case,” rather than a “constitutional case.” Rios, 696 F.3d at 640. Second, the prisoner must show that he relies on a retroactive decision that he could not have invoked in his first § 2255 motion. Id. “The third condition is that [the] sentence enhancement ... have been a grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding.” Id.; see also Davenport, 147 F.3d at 611 (a prisoner must show “a fundamental defect in his conviction or sentence”).

In a recent collateral challenge also based on Begay, we found that the first two conditions were clearly satisfied. Rios, 696 F.3d at 640. We recognized that “Begay was not a constitutional case, but a statutory-interpretation case,” thus satisfying Davenport 's first consideration, and that there, the prisoner “could not have invoked [Begay ] in his first section 2255 motion either, because Begay hadn't yet been decided.” Id. Likewise here, Brown brings a challenge based on Begay (the same statutory interpretation case), which had not been decided as of Brown's first § 2255 motion. The Government does not contest the fact that Begay was a statutory

[719 F.3d 587]

interpretation case, though it does dispute the notion that Brown could not have raised his current argument in his first section 2255 motion. We conclude that Brown could not have raised his current argument in his first section 2255 motion because it was foreclosed by binding precedent at that time; this argument will be addressed in greater detail in Section B, infra, in light of our more recent reasoning in Werlinger, 695 F.3d at 648.

The Government concedes that the third Davenport consideration is satisfied here, and we think rightfully so. The Government reasons that our decision in Narvaez v. United States, 674 F.3d 621 (7th Cir.2011), requires finding that the erroneous application of the mandatory career offender Guideline is a fundamental sentencing defect that can be remedied under § 2241. Narvaez concluded that a misapplication of the mandatory career offender Guideline presented a cognizable non-constitutional claim for initial collateral relief because the error resulted in a miscarriage of justice. Id. at 627–28. Although Narvaez was a § 2255 case, the Government concedes that its holding forecloses a credible argument that an identical error is not a “fundamental sentencing defect” justifying successive § 2241 relief under Davenport.¹

The Government is correct. In Narvaez, we concluded that Begay 's postconviction clarification in the law demonstrated that a § 2255 petitioner had been improperly designated as a career offender. As a result, “his period of incarceration exceed[ed] that permitted by law and constitute[d] a miscarriage of justice.” Id. at 623. We reasoned that “[t]he career offender status illegally increased [the defendant's] sentence approximately five years beyond that authorized by the sentencing scheme,” which went to the “fundamental...