Yang v. Watson
| Decision Date | 18 November 2021 |
| Docket Number | 2:19-cv-00535-JPH-MG |
| Parties | KER YANG, Petitioner, v. T. J. WATSON, Respondent. |
| Court | U.S. District Court — Southern District of Indiana |
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND DIRECTING ENTRY OF FINAL JUDGMENT
In 2014, petitioner Ker Yang was convicted of one count of unlawful possession of a firearm in violation of 18 U.S.C § 922(g)(1), and thereafter sentenced pursuant to the enhanced mandatory minimum provision of 18 U.S.C. § 924(e). He seeks relief from his conviction and sentence pursuant to 28 U.S.C. § 2241. For the following reasons Mr. Yang's habeas petition is denied.
In June 2014, a grand jury indicted Mr. Yang on one count of unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). United States v. Yang, 3:14-cr-00070-wmc-1 ("Crim. Dkt."), dkt. 2 (W.D. Wis.). Mr. Yang executed a plea agreement in August 2014, agreeing to plead guilty to the charge. Crim. Dkt. 11. The plea agreement provided that the maximum penalty for a § 922(g) offense was ten years' imprisonment unless application of 18 U.S.C. § 924(e) raised the mandatory minimum penalty to 15 years' imprisonment. Id. at 1. After conducting a hearing, the court accepted Mr. Yang's guilty plea. Crim. Dkt. 12.
The presentence investigation report prepared before Mr. Yang's sentencing hearing recognized that 18 U.S.C. § 924(e) applied to Mr. Yang because he had four prior qualifying felony convictions: (1) assault in the second degree and assault in the second degree for the benefit of a gang; (2) drive-by shooting; (3) assault in the third degree; and (4) domestic assault. Dkt. 14 at 7. Consequently, Mr. Yang's guidelines sentence range was 180 to 210 months' imprisonment. Id. at 20.
The trial court conducted a sentencing hearing in November 2014. Crim. Dkt. 22 (docket entry); Crim. Dkt. 27 (transcript). It concluded that § 924(e) applied and relied upon three of Mr. Yang's prior convictions: (1) assault in the second degree; (2) assault in the third degree; and (3) domestic assault. Crim. Dkt. 27 at 9. The court sentenced Mr. Yang to the mandatory minimum fifteen-year sentence, but it noted that "a lower sentence appears . . . to be more reasonable and no greater than necessary to hold the defendant accountable, protect the community, provide the defendant opportunity for rehabilitative programs, and achieve parity with sentences of similarly situated offenders." id. at 15-16. It stated that "[a] sentence of at least 10 years and perhaps as much as 12-and-a-half years would have been within the range of reasonableness in the court's view." Id. at 16. The court entered judgment on November 26, 2014. Crim. Dkt. 23.
Mr. Yang appealed his conviction and sentence, arguing that his prior conviction for domestic assault could not be a violent felony under § 924(e). United States v. Yang, 799 F.3d 750, 751-52 (7th Cir. 2015). The Seventh Circuit concluded that the district court "could consult the relevant sentencing and plea transcripts to identify the statute of conviction." Id. at 752. After confirming that Mr. Yang's domestic assault conviction fell under Minnesota Statute § 609.224, the Seventh Circuit held that "[a] conviction under this statute qualifies as a violent felony because it has 'as an element the use, attempted use, or threatened use of physical force against the person of another.'" Id. at 756 (quoting 18 U.S.C. § 924(e)(2)(B)(i)). Mr. Yang's conviction and sentence were affirmed.
Mr. Yang then filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Crim. Dkt. 36. He argued that he was not subject to § 924(e) because none of his prior convictions qualified as a "violent felony" in light of Johnson v. United States, 576 U.S. 591 (2015). Id. The court denied Mr. Yang's motion, finding that each of his prior convictions qualified as a "violent felony" under the force clause of § 924(e). Crim. Dkt. 38.
Mr. Yang filed this § 2241 petition in November 2019. Dkt. 1. He now contends that his prior conviction for assault second degree does not qualify as a "violent felony." Dkt. 2 at 5-8.
Mr. Yang argues that his prior conviction for second degree assault no longer qualifies as a "violent felony" under § 924(e) in light of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016). Specifically, he claims that the statute under which he was convicted, Minn. Stat. § 609.222, is not divisible and its elements do not satisfy the definition of "violent felony." Dkt. 2 at 5-8. The respondent contends that Mr. Yang may not proceed under § 2241 because he cannot show a miscarriage of justice. Dkt. 13 at 6-9.
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Shepherd v. Krueger, 911 F.3d 861, 862 (7th Cir. 2018); Webster v. Daniels, 784 F.3d 1123, 1124 (7th Cir. 2015) (en banc). Under very limited circumstances, however, a prisoner may employ section 2241 to challenge his federal conviction or sentence. Webster, 784 F.3d at 1124. "[§] 2241 authorizes federal courts to issue writs of habeas corpus, but § 2255(e) makes § 2241 unavailable to a federal prisoner unless it 'appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of [the] detention.'" Roundtree v. Krueger, 910 F.3d 312, 313 (7th Cir. 2018). Section 2255(e) is known as the "savings clause."
The Seventh Circuit has held that § 2255 is "'inadequate or ineffective' when it cannot be used to address novel developments in either statutory or constitutional law, whether those developments concern the conviction or the sentence." Roundtree, 910 F.3d at 313 (). Whether § 2255 is inadequate or ineffective "focus[es] on procedures rather than outcomes." Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002).
The Seventh Circuit construed the savings clause in In re Davenport, holding:
A procedure for postconviction relief can be fairly termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.
In re Davenport, 147 F.3d at 611. "[S]omething more than a lack of success with a section 2255 motion must exist before the savings clause is satisfied." Webster, 784 F.3d at 1136.[1] Specifically, to fit within the savings clause following Davenport, a petitioner must meet three conditions: "(1) the petitioner must rely on a case of statutory interpretation (because invoking such a case cannot secure authorization for a second § 2255 motion); (2) the new rule must be previously unavailable and apply retroactively; and (3) the error asserted must be grave enough to be deemed a miscarriage of justice, such as the conviction of an innocent defendant." Davis v. Cross, 863 F.3d 962, 964 (7th Cir. 2017); Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).[2] Because the respondent does not argue that Mr. Yang fails to satisfy the first two Davenport factors, the Court considers only whether Mr. Yang's argument satisfies the third Davenport factor-whether the error asserted is "grave enough to be deemed a miscarriage of justice." Davis, 863 F.3d at 964.
Mr. Yang's argument that he is not subject to the sentence enhancement under § 924(e) satisfies the third Davenport factor. Section 924(e) prescribes a 15-year mandatory minimum sentence if a defendant is convicted of being a felon in possession of a firearm following three prior convictions for a "violent felony" or "serious drug offense." 18 U.S.C. § 924(e). If, however, a defendant does not have the requisite three prior convictions, he faces only the felon-in-possession statute's 10-year maximum penalty. 18 U.S.C. § 924(a)(2); see also Mathis, 136 S.Ct. at 2248. If Mr. Yang no longer has three prior convictions for a "violent felony" or "serious drug offense" post-Mathis, his sentence was wrongly enhanced, and he was subjected to a miscarriage of justice. See Narvaez v. United States, 674 F.3d 621, 629 (7th Cir. 2011) (). The Court therefore will address the merits of Mr. Yang's Mathis claim.
Mr. Yang challenges only whether his prior conviction for second-degree assault qualifies as a "violent felony." Thus, the Court will not examine the other two prior convictions that were considered in the § 924 enhancement.
At the time of Mr. Yang's sentencing, the ACCA defined "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that (1) "has as an element the use, attempted use or threatened use of physical force against the person of another;" (2) "is burglary, arson, or extortion, [or] involves the use of explosives;" or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B) (eff. Oct. 6, 2006 to Dec. 20, 2018). These three "clauses" are respectively known as (1) the elements or force clause, (2) the enumerated clause, and (3) the residual clause. In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court ruled that the residual clause was unconstitutionally vague.
The ACCA defines "serious drug offense" as any "offense under State law, involving...
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