Gamboa v. Daniels

• Decision Date: 14 February 2022
• Docket Number: No. 20-1093,20-1093
• Parties: Michael Gerald GAMBOA, Petitioner-Appellant, v. Charles DANIELS , Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

26 F.4th 410

Michael Gerald GAMBOA, Petitioner-Appellant,

v.Charles DANIELS ^* , Warden, Respondent-Appellee.

No. 20-1093

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2021

Decided February 14, 2022

MiAngel Christina Cody, Jacquelyne Karie Phelps, Attorneys, Decarceration Collective, Chicago, IL, for Petitioner-Appellant.

W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Respondent-Appellee.

Before Kanne, Wood, and Hamilton, Circuit Judges.

Kanne, Circuit Judge.

In 2003, a federal jury in North Dakota convicted Michael Gamboa of seven counts of drug and firearm crimes. At sentencing, the district court found that Gamboa had two or more prior convictions for felony drug offenses, which meant he was subject to a mandatory term of life imprisonment without release under 21 U.S.C. § 841(b)(1)(A)(viii) on two of the counts. After an unsuccessful direct appeal and multiple 28 U.S.C. § 2255 motions and 28 U.S.C. § 2241 petitions, Gamboa again seeks a writ of habeas corpus under § 2241. He argues that, under Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016), his prior state drug convictions do not constitute felony drug offenses for the purposes of the sentencing enhancement under § 841(b)(1)(A), as defined in 21 U.S.C. § 802(44). The district court denied habeas relief because Gamboa had not shown that his claim was previously foreclosed at the time of his initial § 2255 motion. We affirm.

I. BACKGROUND

A. Gamboa's Sentencing and Direct Appeal

In 2003, a jury in the District of North Dakota found Gamboa guilty on all counts of a seven-count indictment for offenses involving firearms, narcotics possession, and conspiracy to possess with the intent to distribute methamphetamine. Relevant here are Counts 1 and 2: conspiracy to possess with intent to distribute methamphetamine and aiding and abetting in violation of 21 U.S.C. § 846, as defined under 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2 (Count 1); and possession of methamphetamine with intent to distribute and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2).

Before trial, the government filed its notice of prior convictions under 21 U.S.C. § 851(a). The notice alleged that Gamboa had three prior convictions for felony drug offenses: (1) a felony conviction for a drug-distribution conspiracy occurring between September 1994 and November 1995, involving cocaine, methamphetamine, and/or marijuana, entered on October 11, 1996, in Polk County District Court, Minnesota, in violation of Minn. Stat. § 152.096, subdiv. 1 (1989) ; (2) a felony conviction for a controlled-substance offense in the fifth degree, possession of a mixture containing cocaine occurring on or about September 13, 1995, entered on October 11, 1996, in Polk County District Court, Minnesota, in violation of Minn. Stat. § 152.025, subdiv. 2(1) (1995) ; and (3) a felony conviction for delivery of marijuana occurring on or about November 27, 1995, entered in Grand Forks County District Court, North Dakota, on October 23, 1996, in violation of N.D. Cent. Code, § 19-03.1-23(1)(b) (1995).

At sentencing, Gamboa argued that his prior state offenses should not count as separate predicate felony convictions. However, the "court made specific findings that the North Dakota conviction for the delivery of marijuana in Grand Forks County and the drug conspiracy conviction in Polk County, Minnesota, were both separate predicate felony convictions for the purpose of enhancing the sentences on Counts One and Two." United States v. Gamboa , 439 F.3d 796, 813 (8th Cir. 2006). The § 841 enhancement, at the time, increased the statutory maximum sentence to life imprisonment without release. See 21 U.S.C. § 841(b)(1)(A)(viii). The district court sentenced Gamboa to concurrent terms of life imprisonment on Counts 1 and 2.

On direct appeal, the Eighth Circuit affirmed Gamboa's conviction and sentence on Counts 1 and 2. The Supreme Court later denied Gamboa's petition for a writ of certiorari. Gamboa v. United States , 549 U.S. 1042, 127 S.Ct. 605, 166 L.Ed.2d 449 (2006).

B. Gamboa's § 2255 Motions and Previous § 2241 Petitions

On November 13, 2007, Gamboa filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 in the District of North Dakota. The district court dismissed his § 2255 motion with prejudice and the Eighth Circuit declined to issue a certificate of appealability.

Gamboa has had a lengthy post-conviction history. See, e.g., Gamboa v. United States , No. 13–2674 (8th Cir. Oct. 20, 2013) (affirming dismissal of successive § 2255 motion brought without authorization); Gamboa v. United States , No. 12–3864 (8th Cir. Mar. 28, 2013) (denying application for successive § 2255 motion); Gamboa v. Stine , No. 7-cv-00002, 2007 WL 38373 (E.D. Ky. Jan. 5, 2007) (denying § 2241 petition); Gamboa v. Warden, FCC Coleman , No. 11-cv-00202 (M.D. Fla. May 20, 2011) (dismissing § 2241 petition); Gamboa v. Krueger , 668 F. App'x 654 (7th Cir. 2016) (affirming dismissal of § 2241 petition). But we need not discuss the details of his numerous motions and petitions for post-conviction relief because they are all unrelated to the issues before us.

C. Gamboa's New § 2241 Petition

In 2016, the Supreme Court decided Mathis , which narrowed the range of state statutes that qualify as violent-felony predicates under the Armed Career Criminal Act. After Mathis was decided, Gamboa again pursued post-conviction relief under § 2241 in the Central District of Illinois, where he was confined at the time.

Relying on Mathis , Gamboa argued that the state drug statutes used to enhance his sentence are overbroad and, therefore, do not qualify as predicate felony drug offenses within the meaning of 21 U.S.C. § 802(44). The government argued that Gamboa was not previously foreclosed from bringing a Mathis -style argument based on Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which held that a sentencing court must generally adopt a formal categorical approach in applying the sentencing enhancement provision of the Armed Career Criminal Act, looking only to the fact of conviction and the statutory definition of the predicate offense rather than to the particular underlying facts.

Gamboa responded by contending that his argument had indeed been foreclosed prior to Mathis because Eighth Circuit precedent interpreting Taylor — United States v. Payton , 918 F.2d 54 (8th Cir. 1990), and United States v. Cornelius , 931 F.2d 490, 494 (8th Cir. 1991) —permitted all alternatively phrased overbroad statutes to be treated as per se divisible. The district court denied Gamboa relief under § 2241 because it found that he had not identified Eighth Circuit precedent that broadly foreclosed any argument that an alternatively phrased statute could be indivisible at the time of his direct appeal and initial § 2255 motion, nor any other case law that would have foreclosed his claim.

Gamboa now appeals.

II. ANALYSIS

A. Appellate Jurisdiction

We start with the preliminary issue we asked the parties to address. On February 7, 2020, we authorized Gamboa's transfer to a federal facility in Texas. We asked the parties to address the effect on this appeal, if any, of his transfer to the Texas facility. Both parties agree that we retain jurisdiction over this appeal despite Gamboa's transfer to a facility in another jurisdiction. So do we.

"Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." 28 U.S.C. § 2241(a). A court "may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it." Id. § 2241(b). "In accord with the statutory language ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held ...." Rumsfeld v. Padilla , 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (citing Hogan v. Hanks , 97 F.3d 189, 190 (7th Cir. 1996) ). But "when the Government moves a habeas petitioner after [ ]he properly files a petition naming h[is] immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release." Id. at 441, 124 S.Ct. 2711 ; see also Ex Parte Endo , 323 U.S. 283, 306–07, 65 S.Ct. 208, 89 L.Ed. 243 (1944).

We retain jurisdiction to hear Gamboa's appeal. Gamboa filed his petition in the Central District of Illinois while incarcerated in that district, and he was still located there when the district court entered judgment on July 31, 2019. Gamboa's proper filing of his § 2241 petition in the district where he was incarcerated at the time vests us with jurisdiction over Gamboa's appeal. See In re Hall , 988 F.3d 376, 378 (7th Cir. 2021) (issuing a writ of mandamus to the district court directing it to rescind its transfer order and return the case to the Southern District of Indiana, where petitioner was incarcerated when he filed his § 2241 petition).

B. Gamboa's § 2241 Petition

With jurisdiction established, we can now address Gamboa's appeal. Gamboa appeals from the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2241. He argues that, given recent changes in our application of the categorical approach, under Mathis , his prior Minnesota and North Dakota drug convictions do not qualify as predicate felonies under the federal statutes that determined his sentence.

1. Background on the Categorical Approach

Section 841 requires an increase in the mandatory minimum sentence for any defendant convicted under the statute "after a prior conviction for a serious drug felony or serious violent felony has become final." 21 U.S.C. § 841(b)(1)(A)(viii). Section 802(44) defines ...