United States v. Wyatt

• Decision Date: 06 March 2012
• Docket Number: No. 10–3792.,10–3792.
• Citation: 672 F.3d 519
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John M. WYATT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

672 F.3d 519

UNITED STATES of America, Plaintiff–Appellee,

v.John M. WYATT, Defendant–Appellant.

No. 10–3792.

United States Court of Appeals, Seventh Circuit.

March 6, 2012.

Andrew Simonson, Assistant U.S. Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff–Appellee.

John M. Wyatt, Federal Correctional Institution–La Tuna, Anthony, TX, pro se.

Before EASTERBROOK, Chief Judge, and COFFEY ^* and ROVNER, Circuit Judges.ROVNER, Circuit Judge.

John M. Wyatt is caught in a procedural mess from which we cannot extricate him. Wyatt was convicted of a drug offense in the Southern District of Illinois, a court sitting within the Seventh Circuit. He is incarcerated in the Western District of Texas, which sits in the Fifth Circuit. The district court that sentenced him concluded that he was a career offender under section 4B1.1 of the Sentencing Guidelines, based, in part, on an erroneous assumption that it should treat his prior conviction for a walkaway escape from a halfway house as a qualifying felony for the career-offender adjustment. The court did not make this assumption without cause; that was the law of this circuit at the time. See United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002). With the career offender finding, Wyatt's sentencing guidelines range was 262 to 327 months' imprisonment, and the court sentenced Wyatt to 262 months. Although it is difficult to discern from the record as it currently stands what the range would have been without the career offender finding, Wyatt's base offense level for his conviction was 26, which, combined with his criminal history category of VI would have resulted in a guidelines range of 120 to 150 months.¹

We affirmed Wyatt's conviction and sentence on direct appeal, rejecting his argument that the walkaway escape was not a crime of violence under the career offender guideline. United States v. Wyatt, 133 Fed.Appx. 310, 316 (7th Cir.2005) (“ Wyatt I ”). His attorney failed to file a petition for a writ of certiorari challenging our affirmance, which, in retrospect, is unfortunate because the Supreme Court later held in another defendant's case (as we discuss below) that a walkaway escape is not a crime of violence.

We also affirmed the district court's subsequent denial of Wyatt's first motion under 28 U.S.C. § 2255. Wyatt v. United States, 574 F.3d 455 (7th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1925, 176 L.Ed.2d 394 (2010) (“ Wyatt II ”). In that appeal, Wyatt argued that he received ineffective assistance of counsel at trial and in the direct appeal process. He cited his attorney's failure to file a petition for a writ of certiorari challenging his conviction and sentence after we affirmed the district court's judgment on direct appeal. He also complained that his attorney failed to inform him before he pled guilty that he could be sentenced as a career offender based on his walkway escape from a halfway house. Apart from his ineffective assistance argument, however, Wyatt did not raise in his section 2255 appeal a stand-alone claim that his escape was improperly treated as a crime of violence for the purposes of the career offender guideline. In Wyatt II, we found that the failure of Wyatt's attorney to file a petition for a writ of certiorari in his direct appeal could not constitute ineffective assistance of counsel because a defendant has no right to an attorney in seeking review with the Supreme Court. Wyatt II, 574 F.3d at 459.

While Wyatt's appeal from the denial of his first section 2255 motion was pending, he filed a habeas corpus petition under 28 U.S.C. § 2241 in the Western District of Texas based on the Supreme Court's then-recent decision in Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). In Chambers, the Court held that the passive offense of failing to report to a penal institution was not properly classified as a violent felony under the Armed Career Criminal Act (the “ACCA”). The ACCA uses language identical to that in section 4B1.2 ² of the Sentencing Guidelines to define the term “crime of violence,” and we have therefore analyzed the statute and the guideline in the same way. See United States v. Womack, 610 F.3d 427, 433 (7th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 3020, 180 L.Ed.2d 849 (2011) (noting that we “interpret coterminously the ACCA and the career offender § 4B1.1 provision”). The Court had also recently decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), where it held that whether a crime is a violent felony under the ACCA is determined by how the law defines it and not how an individual offender might have committed it on a particular occasion.

Based on those two cases, Wyatt asked in his section 2241 petition that his sentence be vacated because the sentencing court (in the Southern District of Illinois) had erred in concluding that his conviction for walking away from a halfway house was a qualifying violent crime for career offender status under the guidelines. The district court (in the Western District of Texas) determined that Wyatt could not bring a section 2241 petition challenging this sentencing error because the escape hatch of section 2255(e) was not satisfied.³ Wyatt v. Bragg, No. EP–09–CA–71–DB (W.D.Tex. Mar. 4, 2009). The Texas court also recharacterized Wyatt's section 2241 petition as an application to file a successive section 2255 motion and transferred it to the Seventh Circuit. Id.

We issued an order transferring the matter to Wyatt's pending appeal of his section 2255 action and construing it as a motion to amend the certificate of appealability.⁴ Wyatt v. United States, No. 09–1624 (7th Cir. Mar. 13, 2009). Although we characterized the transferred section 2241 petition as a request to amend the certificate of appealability in Wyatt's appeal of his section 2255 motion, we ultimately did not treat it as such. Instead we concluded that it was improper for the Texas court to recharacterize the section 2241 petition, but we found that it would be pointless to transfer it back to the Western District of Texas where it had been considered and dismissed. Wyatt II, 574 F.3d at 460. See also Collins v. Holinka, 510 F.3d 666, 667 (7th Cir.2007) ( section 2241 is a distinct form of relief in a specific court, and persons initiating such claims are entitled to have them resolved under the grant of authority they chose to invoke). We also noted that no district court within the Seventh Circuit could entertain Wyatt's section 2241 claim because the proper venue for such a claim is the district in which the prisoner is confined. Wyatt II, 574 F.3d at 460.

After we affirmed the denial of Wyatt's first section 2255 motion, he filed in the Seventh Circuit his first application for permission to file a second or successive section 2255 motion, raising a stand-alone Chambers/ Begay issue. See 28 U.S.C. § 2244(b)(3). As we have noted, Wyatt previously raised this issue in his first section 2255 appeal only in the context of ineffective assistance of counsel. We denied Wyatt's application because Chambers and Begay did not announce constitutional rules but instead interpreted statutory terms. Wyatt's application therefore failed to meet the standard for authorizing a second or successive section 2255 motion. See Wyatt v. United States, No. 10–2386 (7th Cir. June 15, 2010).

Wyatt then filed his third section 2241 petition in the Western District of Texas, this one also based on Begay and Chambers. As it had done before, the Texas district court determined that Wyatt could not bring this claim in a section 2241 petition, and the court again recharacterized the petition as an application to file a second or successive section 2255 motion and transferred it to the Seventh Circuit. Wyatt v. Bragg, No. EP–10–CA–237–DB (W.D. Tex. June 29, 2010) ( Wyatt III ). We dismissed that transferred matter as duplicative of Wyatt's first Seventh Circuit application for a second or successive section 2255 motion. We noted, however, that, “under this circuit's law, Wyatt properly brought his Begay/Chambers claim under § 2241 in Texas, where the court has jurisdiction over his custodian.” Wyatt v. United States, No. 10–2607 (7th Cir. July 12, 2010). See also Welch v. United States, 604 F.3d 408 (7th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 3019, 180 L.Ed.2d 844 (2011). We noted that the Texas court disagreed with Welch, finding instead that section 2255 is not inadequate or ineffective to test Wyatt's claim because he is challenging his sentence, not his conviction. We hinted that Wyatt might still be able to appeal the decision denying his section 2241 petition. Wyatt apparently followed our suggestion and filed an appeal in the Fifth Circuit challenging the denial and transfer of his section 2241 petition.

This tortured history brings us to Wyatt's latest attempt to obtain relief from his sentence as a career offender, a status that he would not be assigned under current Supreme Court and Seventh Circuit law. On November 1, 2010, Wyatt filed a Rule 33(a) motion for a new trial in the Southern District of Illinois, where he was originally sentenced. Wyatt argued that he was entitled to a new trial because Chambers and Begay constituted newly discovered evidence of his innocence. The district court found that Wyatt's motion was untimely and that Supreme Court cases do not constitute evidence. The court then concluded that Wyatt's motion was an unauthorized successive collateral attack on his conviction and the court dismissed the motion for lack of jurisdiction. On appeal, we affirmed the district court. We noted that Wyatt had an appeal pending in the Fifth Circuit related to a prior dismissal of one of his section 2241 petitions in which he raised the same Chambers/ Begay issue. Again citing our decision in Welch, we advised Wyatt that this was the proper vehicle for obtaining...