Rhodes v. Warden

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JIMMY EUGENE RHODES, #15025-064, )

)

Petitioner, )

)

vs. ) Case No. 17-cv-0562-SMY

)

WARDEN, USP-MARION, )

)

Respondent. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Petitioner Jimmy Eugene Rhodes, an inmate in the Bureau of Prisons, filed a Petition for

Writ of Habeas Corpus under 28 U.S.C. § 2241 on May 30, 2017. (Doc. 1). Following a jury trial

in the Western District of Oklahoma in 2002, Rhodes was convicted of two counts of possession

of a firearm by a felon (Counts 1 and 3),1 possession of methamphetamine (Count 2),2 possession

of a stolen firearm (Count 4),3 and maintaining a place for the manufacture, distribution, or use of

a controlled substance (Count 5).4 United States v. Rhodes, No. 01-cr-0202-R-1, Doc. 56 (W.D.

Okla. April 10, 2002), Doc. 136, pp. 1–2. Rhodes’ statutory sentence for Counts 1 and 3 was

enhanced to a 15-year mandatory minimum pursuant to the Armed Career Criminal Act (the

“ACCA”), 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(B)(ii) (1998)5 based in part on two prior

Oklahoma felony convictions: 1986 and 1990 convictions for burglary in the second degree

pursuant to OKLA. STAT. tit. 21, § 1435 (1969). Without the ACCA enhancement, Rhodes would

1 18 U.S.C. § 922(g)(1) (1998).

2 21 U.S.C. § 844 (1996).

3 18 U.S.C. § 922(j) (1998).

4 21 U.S.C. § 856(a)(1) (2000).

5 18 U.S.C. § 922(e)(1) sets a 15-year mandatory minimum sentence for “a person who violates section 922(g) of this

title and has three previous convictions . . . for a violent felony or a serious drug offense[.]” Section 924(e)(2)(B)

defines the term “violent felony,” to include the enumerated crime of burglary.

have faced a statutory maximum penalty of 10 years on the felon in possession counts. 18 U.S.C.

§ 924(a)(2).

Rhodes now invokes Mathis v. United States, – U.S. –, 136 S. Ct. 2243 (2016) to challenge

his sentence enhancement based on the second-degree burglary convictions and contends he is

entitled to be resentenced without the enhancement. Specifically, Rhodes argues that the

Oklahoma statute of conviction is broader than the federal definition of burglary and criminalizes

more conduct than the “generic” definition of burglary as defined by the Supreme Court because

it criminalizes breaking and entering of railroad cars, automobiles, trucks, trailers, vessels, and

vending machines. (Doc. 1, pp. 6–8). Respondent opposes issuance of the Writ, arguing that

Rhodes cannot satisfy the requirements of § 2255(e)’s savings clause because his Mathis theory

was not foreclosed by binding precedent before Mathis was decided, and Mathis does not apply

retroactively to cases on collateral review. (Doc. 28, pp. 5–7). Rhodes replied to Respondent’s

response. (Doc. 30). This matter is now ripe for resolution. For the reasons discussed below,

Rhodes’ § 2241 Petition (Doc. 1) will be GRANTED.

RELEVANT FACTS AND PROCEDURAL HISTORY

Following a jury trial, Rhodes was found guilty on five counts, including two counts of

possessing firearms after a felony conviction in violation of 18 U.S.C. § 922(g)(1), one count of

possessing methamphetamine in violation of 21 U.S.C. § 844(a), one count of possessing firearms

he knew to be stolen in violation of 18 U.S.C. § 922(j), and maintaining a house where

methamphetamine was manufactured or distributed in violation of 21 U.S.C. § 856(a)(1). United

States v. Rhodes, No. 01-cr-0202-R-1, Doc. 56 (W.D. Okla. April 10, 2002); see also Doc. 71;

Doc. 107, pp. 1–2.6 The Presentence Report (“PSR”) provided to the sentencing court listed three

6 Neither party has provided the Court with a copy of the jury verdict, PSR, statement of reasons, or judgment from

Rhodes’ underlying criminal case. These documents were all filed under seal and inaccessible to the Court. See

prior Oklahoma felony convictions that qualified Rhodes for an enhanced mandatory minimum

sentence pursuant to the ACCA: a 1984 conviction for shooting with intent to kill; and 1986 and

1990 convictions for burglary in the second degree. Id. at Doc. 63-1, ¶¶ 52, 59–61; Doc. 128, pp.

2–3; Doc. 132, pp. 2–3.

The sentencing court determined Rhodes’ Guideline Range to be 235 to 293 months

imprisonment, based on a total offense level of 33 and a criminal history category of VI. Id. at

Doc. 63-1; Doc. 124; Doc. 132, p. 3. Rhodes was ultimately sentenced to 260 months

imprisonment on his felon in possession counts as a result of the ACCA enhancement predicated

on his prior Oklahoma felony convictions. Rhodes, No. 01-cr-0202-R-1, Doc. 72 (W.D. Okla.

Aug. 22, 2002); see also Doc. 136, p. 2. The sentencing court also imposed sentences between 36

and 240 months on the other three counts, all to be served concurrently to his 260-month sentence

for the felon in possession counts. Id. at Docs. 71, 72. Rhodes has attacked his conviction and

sentence in a variety of ways since his sentencing.

Direct Appeal and First Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2255

On direct appeal, Rhodes argued the district court erred in several of its pre-trial and

evidentiary rulings, and also alleged that 18 U.S.C. § 922(g)(1) violated the Second Amendment.

United States v. Rhodes, 62 F. App’x 869, 870–72 (2003). At that time, Rhodes did not appeal the

Rhodes, No. 01-cr-0202-R-1 at Doc. 56 (jury verdict), Doc. 63-1 (PSR), Doc. 124 (statement of reasons), and Doc. 72

(judgment). However, there are no factual disputes between the parties relating to the contents of these documents,

and the Court was able to corroborate and confirm the relevant portions of these documents after reviewing the docket

entries that were publicly available. See, e.g., Rhodes, No. 01-cr-0202-R-1, Doc. 71 (minutes of Rhodes’ sentencing

hearing confirming his five counts of conviction and their respective sentences); id. at Doc. 107, p. 1 (sentencing

court’s restatement of facts in order denying Rhodes’ initial § 2255 motion); id. at Doc. 128, pp. 2–3 (Government’s

responsive pleading to Rhodes’ second successive § 2255 motion summarizing PSR contents and findings with

multiple specific citations to the PSR’s text); id. at Doc. 132, pp. 2–3 (Rhodes’ reply in support of second successive

§ 2255 petition also summarizing PSR and statement of reasons with no apparent discrepancies with the Government’s

recitation of facts); id. at Doc. 136, pp. 1–2 (sentencing court’s restatement of facts in order denying Rhodes’ second

successive § 2255 motion). All further citations to these sealed documents are accompanied by citations to one or

more of these sources.

sentencing court’s use of his prior Oklahoma burglary convictions to enhance his sentence under

the ACCA. Id. The Tenth Circuit Court of Appeals upheld Rhodes’ convictions in their entirety.

Id. at 876.

Rhodes then filed a motion under 28 U.S.C. § 2255 in May of 2004. Rhodes, No. 01-cr-

0202-R-1, Doc. 90 (W.D. Okla. May 17, 2004). At that time, he asserted that he was denied

effective assistance of counsel at trial due to an irreconcilable conflict with his attorney. Id. at

Doc. 107, p. 1. The motion was denied in all respects (Id. at p. 6) and the Tenth Circuit Court of

Appeals denied Rhodes’ request for a certificate of appealability. Id. at Doc. 115, pp. 11–12.

Subsequent Applications for Authorization to File a Second or Successive Motion

Beginning in 2010, Rhodes filed applications with the Tenth Circuit for authorization to

file a second or successive motion for collateral review under § 2255. The first application

challenged his classification as an armed career criminal under the ACCA pursuant to Curtis

Johnson v. United States, 559 U.S. 133 (2010) and Begay v. United States, 553 U.S. 137 (2008).

The Tenth Circuit denied Rhodes’ application without reaching the merits of his argument, finding

that neither Johnson nor Begay were new rules of constitutional law made retroactive to cases on

collateral review by the Supreme Court. Rhodes, No. 01-cr-0202-R-1, Doc. 117.

Rhodes filed another application for authorization to file a successive § 2255 motion in

May of 2016. Id. at Doc. 126. He argued that Samuel Johnson v. United States, 576 U.S. –, 135

S. Ct. 2551 (2015) required the invalidation of his sentence enhancement based on his Oklahoma

burglary convictions. Id. at pp. 1–2. Rhodes invoked Mathis v. United States, – U.S. –, 136 S. Ct.

2243 (2016) in subsequent pleadings relating to this application, arguing that the Oklahoma

second-degree burglary statute defines burglary more broadly than generic burglary under the

ACCA. Id. at Docs. 128, 132. While the Tenth Circuit did authorize Rhodes’ application to file

a successive § 2255 action, the district court ultimately denied Rhodes’ motion, finding “the record

does not support [Rhodes’] contention” that he was properly raising a claim under Johnson, and

that his Mathis claim also failed due to Tenth Circuit precedent stating that Mathis did not apply

retroactively in the context of an attempt to bring a habeas challenge under § 2255(f)(3). Id. at

Doc. 136, pp. 3–5. The Tenth Circuit affirmed the district court’s denial of Rhodes’ § 2255 motion

on appeal, concluding “there would have been little dispute at the time of [Rhodes’ sentencing]

that [his] burglary convictions constituted enumerated offenses [under the ACCA],” while

specifically “express[ing] no opinion as to whether [prior Tenth Circuit cases analyzing the

ACCA’s enumerated clause] remain good law following [Mathis].” Rhodes, No. 01-cr-0202-R-1,

at Doc. 147, pp. 3–5; (Doc. 14-1, pp. 3–5 in instant case). Rhodes’ Petition for a Writ of Certiorari

was denied by the Supreme Court.

Rhodes’ most recent application for permission to file a subsequent § 2255 motion was

filed in September 2019. The application was premised on United States v. Davis, 588 U.S. –, No.

18-431 (2019) and reiterated Rhodes’ Mathis objections to his sentence. Rhodes, No. 01-cr-0202-

R-1, Doc. 152-1, p. 4. The Tenth Circuit denied the application on October 9, 2019, finding that

Rhodes did not make a prima facie showing that his proposed successive § 2255 motion relied on

the new rule announced in Davis as he was not convicted under 18 U.S.C. § 924(c). Id. at Doc.

156, p. 4, nor did he show that Mathis announced a new rule of constitutional law so as to satisfy

28 U.S.C. § 2255(h)(2). Id. at Doc. 156, p. 5.

APPLICABLE LEGAL STANDARDS

Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not be used to

raise claims of legal error in conviction or sentencing but are instead limited to challenges

regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir.

1998). Thus, aside from the direct appeal process, a prisoner who has been convicted in federal

court is generally limited to challenging his conviction and sentence by bringing a motion pursuant

to 28 U.S.C. § 2255 in the court which sentenced him. See, Kramer v. Olson, 347 F.3d 214, 217

(7th Cir. 2003). A prisoner is also generally limited to only one challenge of his conviction and

sentence under § 2255. He or she may not file a “second or successive” § 2255 motion unless a

panel of the appropriate court of appeals certifies that such motion contains either 1) newly

discovered evidence “sufficient to establish by clear and convincing evidence that no reasonable

factfinder would have found the movant guilty of the offense,” or 2) “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255(h).

However, under very limited circumstances, a prisoner may challenge his federal

conviction or sentence under § 2241. Specifically, 28 U.S.C. § 2255(e) contains a “savings clause”

which authorizes a federal prisoner to file a § 2241 petition where the remedy under § 2255 is

“inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). See United

States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The Seventh Circuit construed the savings

clause in In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998): “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.”7

7 The Seventh Circuit’s interpretation of § 2255(e)’s savings clause is in line with a majority of the Circuit Courts of

Appeals’ jurisprudence on this issue. See, e.g., In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); Triestman v. United

States, 124 F.3d 361, 377 (2d Cir. 1997); In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000); Reyes-Requena v. United

States, 243 F.3d 893, 904 (5th Cir. 2001); Martin v. Perez, 319 F.3d 799 (6th Cir. 2003); Ivy v. Pontesso, 328 F.3d

1057, 1059–60 (9th Cir. 2003); Abdullah v. Hedrick, 392 F.3d 957, 960–63 (8th Cir. 2004); see also Wright v.

Spaulding, – F.3d –, 2019 WL 4493487, at *3 (6th Cir. Sept. 19, 2019) (collecting cases).

However, Rhodes was convicted and sentenced in the Tenth Circuit, one of two jurisdictions that have come

to the opposite conclusion. See Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011) (holding petitioner may not

use § 2255(e)’s savings clause to bring § 2241 petition where the legality of his detention could have been tested in

A petitioner must meet three conditions in order to trigger the savings clause. First, he

must show that he relies on a new statutory interpretation case rather than a constitutional case.

Secondly, he must show that he relies on a decision that he could not have invoked in his first

§ 2255 motion and that case must apply retroactively. Lastly, he must demonstrate that there has

been a fundamental defect in his conviction or sentence that is grave enough to be deemed a

miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See also Chazen v.

Marske, 938 F.3d 851, 856 (7th Cir. 2019); Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012).

“There must be some kind of structural problem with § 2255 before § 2241 becomes available. In

other words, something more than a lack of success with a § 2255 motion must exist before the

savings clause is satisfied.” See Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).

ANALYSIS

In Mathis v. United States, –– U.S. ––, 136 S. Ct. 2243 (2016), the Supreme Court

addressed the question of whether an Iowa burglary conviction was properly used to enhance a

federal sentence under the Armed Career Criminal Act (“ACCA”) and held that only where the

elements of the predicate offense match or are narrower than the elements of the “generic” offense

(in Mathis’ case, generic burglary) may the prior conviction be used as the basis for enhancing a

federal sentence. Mathis, 136 S. Ct. at 2247. The Iowa statute in question identified several

alternative locations where the burglary may take place, including a “building, structure, . . . land,

water, or air vehicle.” Id. at 2250. The Court noted that the statute was “indivisible,” describing

a single crime with several possible modes, or “means,” of commission, and found that because

the generic offense of burglary is limited to unlawful entry into a “building or other structure” with

an initial § 2255 motion, even where his legal theory was foreclosed by binding precedent); McCarthan v. Dir. Of

Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1099–1100 (11th Cir. 2017) (en banc) (federal prisoner may not use

§ 2255(e)’s savings clause to bring § 2241 habeas petition if he was free to bring such a claim in his initial § 2255

motion).

intent to commit a crime, the Iowa statute was overbroad. Mathis, 136 S. Ct. at 2248, 2250

(quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). As such, the Court concluded that

the ACCA enhancement based on the Iowa conviction could not stand, even though the records in

Mathis’ Iowa case contained facts showing that his actual offense conduct matched the elements

of generic burglary.

Mathis resolved a split among the circuits as to under what circumstances and for what

purpose a court may consult state charging or sentencing documents (known as the “modified

categorical approach”) to determine whether a previous conviction, under an alternatively-phrased

statute, may qualify as a career-criminal predicate offense. See Chazen, 938 F.3d at 857-59. See

also Shepard v. United States, 544 U.S. 13, 26 (2005) (limiting the case documents which may be

consulted by a court when comparing non-generic statute of conviction to generic offense). Mathis

clarified that only if a statute is “divisible” – that is, it sets forth one or more elements of the offense

in the alternative, each of which amounts to a distinct offense – may the modified categorical

analysis be used to determine which of the alternatives formed the basis of the conviction in

question, and whether the elements of that crime match the elements of the generic offense. Thus,

if an “indivisible” statute lists alternative factual means to satisfy a single element, and if the

alternative means include conduct that sweeps more broadly than the generic crime, then a

conviction under the statute may not be used as a career-offender predicate offense, even if the

particular defendant’s conduct fell within the scope of the generic offense. Mathis, 136 S. Ct. at

2252 (sentencing court “cannot go beyond identifying the crime of conviction to explore the

manner in which the defendant committed that offense”); Van Cannon v. United States, 890 F.3d

656, 663 (7th Cir. 2018) (“the modified categorical approach has no role to play” if the statute is

indivisible).

Application of the 28 U.S.C. § 2255(e) Savings Clause

A claim brought pursuant to Mathis v. United States, 136 S. Ct. 2243 (2016) satisfies the

first condition implicating the savings clause as Mathis is a statutory-interpretation case. See Holt

v. United States, 843 F.3d 720, 722 (7th Cir. 2016); Dawkins v. United States, 829 F.3d 549, 550–

51 (7th Cir. 2016). As to the third condition, “a defendant sentenced in error as an armed career

criminal satisfies the ‘miscarriage of justice’ requirement.” Chazen v. Marske, 938 F.3d 851, 856

(7th Cir. 2019) (citing Light v. Caraway, 761 F.3d 809, 813 (7th Cir. 2014)). Thus, Rhodes has

satisfied the first and third elements of the savings clause.

Previous Availability of Petitioner’s Mathis Claim

In order to bring his claim within the scope of the second element of the savings clause,

Rhodes must first establish that he could not have previously raised the claim he now presents. In

two recent opinions, the Seventh Circuit articulated the test to be applied in evaluating the “prior

unavailability” component. In Beason v. Marske, the court held that a § 2241 petitioner must show

it “would have been futile” to raise his argument in his § 2255 motion because the “law was

squarely against him.” Beason, 926 F.3d 932, 936 (7th Cir. June 24, 2019) (quoting Webster v.

Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015)). In Chazen v. Marske, without stating which of its

various articulations of the test should control going forward, the court concluded that the

petitioner satisfied the “prior unavailability” condition because his claim had clearly been

foreclosed by the law in his circuit of conviction at the time he might have raised it in a § 2255

motion. Chazen, 938 F.3d at 862-63. See also Light, 761 F.3d at 813 (noting that the circuit had

“applied two different tests” as to prior unavailability under Davenport).

Here, Respondent simply asserts without further explanation that Rhodes’ argument under

Mathis was not made pursuant to a new rule of statutory interpretation. (Doc. 28, pp. 5-6).

Respondent does not, however, specifically address whether Rhodes’ Mathis claim was

unavailable at the time he filed his first § 2255 motion. (Doc. 28, pp. 1–8). Seventh Circuit

precedent on this issue focuses on whether the law in the circuit of conviction would have been

against the habeas petitioner. As such, the relevant question is whether Rhodes could have raised

a Mathis-like argument in the Tenth Circuit in 2004.

Rhodes contends that such an argument was not reasonably available to him in the Tenth

Circuit at the time of his direct appeal or his § 2255 motion (Doc. 1, pp. 4–5) and cites to United

States v. Hamilton, 889 F.3d 688 (10th Cir. 2018) in support of his argument. (Doc. 25, p. 2; Doc.

30, p. 1). In Hamilton, the Tenth Circuit analyzed the statute under which Rhodes was convicted,

contrasting its prior precedents with the Supreme Court’s most recent guidance in Mathis.

Hamilton, 889 F.3d at 692–93. It noted that before Mathis, it had approved the practice of applying

the modified categorical approach to statutes without first analyzing whether the statute was

divisible or indivisible. See, e.g., United States v. Green, 55 F.3d 1513, 1515–17 (10th Cir. 1995).

However, in Hamilton, the Tenth Circuit recognized that “[the modified categorical approach] is

permissible only if the statute of conviction is divisible.” Hamilton, 889 F.3d at 692. After

consulting Oklahoma case law, statutory text, and the defendant’s record of conviction, the Tenth

Circuit concluded that it “must treat the Oklahoma [second-degree burglary] statute as indivisible,”

meaning it could not avail itself of the modified categorical approach. Id. at 693–99. It then

concluded that a defendant’s conviction under the Oklahoma second-degree burglary statute does

not fit the ACCA’s enumerated clause because such a conviction “could have been based on

conduct falling outside the generic definition of burglary.” Id. at p. 699.

As is clear from Hamilton, Green, and cases decided in the Tenth Circuit before 2018, this

Court concludes that it would have been futile for Rhodes to have raised the challenges he sets

forth herein in the Tenth Circuit at the time of his direct appeal and § 2255 motion. This conclusion

is supported by the Tenth Circuit’s order affirming the denial of Rhodes’ successive § 2255 motion

in which the court noted that at the time Rhodes was sentenced, it “had repeatedly held that

Oklahoma second degree burglary qualified as an enumerated offense [for ACCA enhancement

purposes] if underlying documents indicated that the defendant burgled a building.” United States

v. Rhodes, No. 17-6096 (10th Cir. Jan. 26, 2018) (Doc. 14-1 herein).8

Retroactive Application of Mathis on Collateral Review

The primary focus of Respondent’s argument as to the second Davenport element is that

“Mathis did not announce a new rule of constitutional law,9 and the Tenth Circuit has specifically

held that it does not apply retroactively.” (Doc. 28, pp. 6–7). While Respondent concedes that the

Tenth Circuit’s language was “not directly decisive in [that] case,” he also points to the language

of Mathis itself to argue that Mathis is not a “new” rule of statutory interpretation. Id.

This argument has been successful in this district in the past. District judges, noting the Supreme

Court’s statement in Mathis that it was applying the analysis first articulated in Taylor v. United

States, concluded that Mathis did not constitute a new rule of statutory construction. See, e.g.,

Blue v. Werlich, Case No. 17-cv-1215-DRH, 2018 WL 6102844 (S.D. Ill. Nov. 21, 2018) (§ 2241

petition) (finding that because the reasoning in Mathis flowed from the precedents of Taylor and

Descamps v. United States, 570 U.S. 254 (2013), Petitioner could have raised a Mathis-like

statutory interpretation argument in a timely-filed motion under 28 U.S.C. § 2255); Arnold v.

8 Rhodes’ Johnson claim raised in the successive § 2255 motion failed because his ACCA enhancement was not based

on the invalidated residual clause. As to Mathis, the Tenth Circuit “express[ed] no opinion” on whether its prior cases

remained good law following that decision. United States v. Rhodes, No. 17-6096 (10th Cir. Jan. 26, 2018) (Doc. 14-

1 herein, p. 4 n.2).

9 The Western District of Oklahoma’s conclusion refers to 28 U.S.C. 2255(h)(2), which governs the authorization for

a second/successive § 2255 motion if it is based on a new rule of constitutional law made retroactive by the Supreme

Court. As Mathis is a case of statutory interpretation, it does not meet that test, but may potentially be raised in a

§ 2241 petition asserting a savings clause claim under § 2255(e).

United States, No. 15-cv-881-DRH, 2018 WL 2087972 (S.D. Ill. May 4, 2018) (§ 2255 motion);

Hanson v. United States, No. 16-cv-428-JPG, 2017 WL 3267952 (S.D. Ill. Aug. 1, 2017) (§ 2255

motion), appeal pending, No. 18-1149.

However, the Seventh Circuit has since spoken directly on this issue, affirming the grant

of habeas relief to a § 2241 petitioner based on his Mathis claim and confirming the retroactive

applicability of Mathis in line with its previous statements in Holt and Dawkins. Chazen v. Markse,

938 F.3d 851 (7th Cir. Sept. 9, 2019). After discussing its various articulations of the second

savings-clause requirement in previous opinions, the court concluded that Mathis “fits the bill” as

a basis for relief in § 2241, as an “intervening case of statutory interpretation [which] opens the

door to a previously foreclosed claim.” Chazen, 938 F.3d at 861-62. Thus, “Mathis is ‘new’ as a

functional and practical matter for federal inmates seeking relief from a mandatory minimum

sentence under the Act.” Id. at 862.10

In light of Chazen and the Seventh Circuit’s discussion of Mathis in Van Cannon, the Court

concludes that Mathis set forth a new substantive rule of statutory construction that should have

retroactive application in a § 2241 petition. See Van Cannon v. United States, 890 F.3d at 663;

Holt v. United States, 843 F.3d at 721–22 (“substantive decisions such as Mathis presumptively

apply retroactively on collateral review”). Accordingly, Rhodes’ claim satisfies the second prong

of the Davenport test. Because Rhodes has satisfied all three prongs of § 2255(e)’s savings clause,

the Court will address the merits of his Mathis claim.

10 The Chazen court stopped short, however, of reaching a blanket conclusion that Mathis would afford relief in all

circumstances to a § 2241 petitioner: “In these circumstances, where the government has conceded that Mathis is

retroactive and Chazen was so clearly foreclosed by the law of his circuit of conviction at the time of his original

§ 2255 petition, we conclude that Chazen has done enough to satisfy the savings clause requirements.” Chazen, 938

F.3d at 863.

Petitioner’s Oklahoma Second-Degree Burglary Conviction

Does Not Categorically Match the Generic Definition of Burglary

Rhodes challenges the classification of his 1986 and 1990 Oklahoma second-degree

burglary convictions as violent felonies pursuant to the enumerated clause of the ACCA. 18 U.S.C.

§ 924(e)(2)(B)(ii) (“[T]he term ‘violent felony’ means any crime punishable by imprisonment for

a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]”)

(emphasis added). While not raised by the parties, a review of the Seventh Circuit’s recent decision

in Chazen v. Marske identifies an issue for the Court to consider as an initial matter: which Circuit

Court of Appeals’ substantive law should apply to the merits of Rhodes’ Mathis claim – the

Seventh Circuit, where Rhodes is currently incarcerated, or the Tenth Circuit, where Rhodes was

convicted and sentenced? As the concurrence in Chazen notes, the Seventh Circuit has not given

explicit guidance on this particular issue. Chazen, 938 F.3d at 864-66 (Barrett, J., concurring). In

Chazen, the government conceded that the substantive law of the Seventh Circuit applied to the

merits of the petitioner’s Mathis claim, and the majority opinion accepted that concession at face

value without further discussion. Id. at 860 (“What is less clear, however, is whether, in evaluating

the merits of Chazen’s petition, we should apply our own precedent or the precedent of the circuit

of conviction . . . [w]e need not decide this issue here because [of the government’s concession]

that the law of this circuit governs the merits of Chazen’s claim.”).

In the absence of such a concession by the parties, several district courts in this circuit and

others have concluded that the law of the circuit of conviction should be applied because to do

otherwise, would create “far more arbitrary” results by “bas[ing] the choice of law decision on the

fortuitous placement of a prisoner by the Bureau of Prisons, not the more rational factor of the

place of conviction.” Hernandez v. Gilkey, 242 F. Supp. 2d 549, 554 (S.D. Ill. 2001).11 That said,

any potential uncertainty as to whether Seventh Circuit or Tenth Circuit substantive law should

apply to Rhodes’ Mathis claim will not change the outcome in this case; Rhodes’ Oklahoma

second-degree burglary convictions are improper predicates for his ACCA enhancement under the

precedents of either circuit.12

At the time of both convictions, the Oklahoma second-degree burglary statute provided:

Every person who breaks and enters any building or any part of any building, room,

booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or

erection, in which any property is kept, or breaks into or forcibly opens, any coin-

operated or vending machine or device with intent to steal any property therein or

to commit any felony, is guilty of burglary in the second degree. OKLA. STAT. tit.

21, § 1435 (1969).

11 See also Cano v. Warden USP–Terre Haute, No. 2:17-cv-441, 2018 WL 3389746 (S.D. Ind. July 12, 2018); Roberts

v. Watson, No. 16-cv-541, 2017 WL 6375812 (W.D. Wis. Dec. 12, 2017); accord Burgess v. Williams, No. 4:18-cv-

2643, 2019 WL 2641902 (N.D. Ohio June 27, 2019); Eames v. Jones, 793 F. Supp. 2d 747, 749 (E.D.N.C. 2011).

12 Because there is no discernible conflict between the Seventh Circuit’s and Tenth Circuit’s substantive law here, the

Court was faced with one less “staggering[ly]” complex issue that § 2241 petitions can force courts to “untangle.”

Chazen, 938 F.3d at 863, 866 (Barrett, J., concurring). However, there is perhaps an even more fundamental question

to address in a case like this—should the Tenth Circuit’s jurisprudence regarding the savings clause itself, not just

the substantive law of the underlying conviction, presumptively apply to Rhodes’ Petition? Recall that the Tenth

Circuit takes the minority view that a petitioner may not use § 2255(e)’s savings clause as a vehicle for a § 2241

habeas petition if he could have raised the same argument in his initial § 2255 motion, even if such an argument was

foreclosed by binding circuit precedent at the time. See supra, p. 6, at n.7; Prost, 636 at 580 (“The fact that § 2255

bars Mr. Prost from bringing his statutory interpretation argument now, in a second § 2255 motion almost a decade

after his conviction, doesn’t mean the § 2255 remedial process was ineffective or inadequate to test his argument. It

just means he waited too long to raise it.”). Simply put, if Rhodes were housed in a Bureau of Prisons facility within

the Tenth Circuit’s borders, his Petition would have been summarily denied based on Prost. But, because he was

incarcerated at the USP-Marion facility in Illinois when he filed this action, his Petition may be considered under the

savings clause jurisprudence of this Circuit.

This result “base[s] the choice of law decision [as to the availability of the savings clause] on the fortuitous

placement of a prisoner by the Bureau of Prisons, not the more rational factor of the place of conviction.” Chazen, 938

F.3d at 865 (Barrett, J., concurring) (quoting Hernandez v. Gilkey, 242 F. Supp. 2d 549, 554 (S.D. Ill. 2001)).

However, the conflict involves the differences between the circuits’ savings clause jurisprudence and not the

substantive jurisprudence on the underlying criminal issues, such as a given circuit’s interpretation of the ACCA. The

Seventh Circuit has at least recognized, though not decided, the latter situation. Id. at *7 (“What is less clear, however,

is whether . . . we should apply our own precedent or the precedent of the circuit of conviction . . . . We need not

decide this issue here[.]”). And while the Seventh Circuit has not explicitly discussed whether such choice of law

issues apply to the law of the savings clause itself where a petitioner was convicted and sentenced in another district,

past discussions in those scenarios have been entirely in the context of Seventh Circuit precedent with no citation to

extra-circuit law on the matter. See Brown, 719 F.3d at 586; Light, 761 F.3d at 812–14; Chazen, 938 F.3d at 855-56.

That, combined with the parties’ silence on the issue, obviates the need for the Court to delve further into this question.

Citing Mathis, Rhodes argues that the statute criminalizes a broad swath of conduct, including the

burglary of automobiles, trucks, trailers, vessels, and even vending machines. (Doc. 1). He further

argues that therefore, the Oklahoma statute’s locational element is broader than the “generic

definition” of burglary as set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575,

598 (1990).13

As long ago as 1995, the Tenth Circuit recognized that on its face, this statute clearly

criminalized more conduct than the generic definition of burglary. United States v. Green, 55 F.3d

1513, 1516 (10th Cir. 1995) (“Because the Oklahoma statute defines burglary in terms broader

than the Taylor definition [of generic burglary], Defendant’s conviction cannot as a categorical

matter provide a basis for enhancement under the ACCA.”). And, following the Supreme Court’s

decision in Mathis, the Tenth Circuit acknowledged unequivocally that it must now determine

whether OKLA. STAT. tit. 21, § 1435 is divisible or indivisible prior to applying the modified

categorical approach to save the statute from its overbroad language and observed that “[n]either

Oklahoma case law, the text of the Oklahoma statute, nor the record of conviction establishes with

certainty whether the locational alternatives constitute elements or means.” United States v.

Hamilton, 889 F.3d 688, 692–93, 698-699 (10th Cir. 2018). In light of that uncertainty, the

Hamilton panel concluded that it “must treat the Oklahoma statute as indivisible,” and its

indivisibility combined with the plain overbreadth of its text meant that convictions pursuant to

that statute could not be used as ACCA predicate offenses. Id. at 699.

Thus, under the substantive law of the Tenth Circuit, this Court concludes that Rhodes’

Mathis claim succeeds on the merits and his 1986 and 1990 Oklahoma second-degree burglary

13 The Taylor court defined the generic meaning of burglary to be “an unlawful or unprivileged entry into, or remaining

in, a building or other structure, with intent to commit a crime.” Id. This is the generic definition of burglary analyzed

in Mathis. 136 S. Ct. at 2248.

convictions may not be considered as proper predicates for his ACCA sentence enhancement.

Absent those convictions, Rhodes no longer has the requisite three predicate “violent felony”

offenses to support the application of the 15-year mandatory minimum sentence for the felon in

possession convictions (Counts 1 and 3) and the 10-year maximum sentence in 18 U.S.C.

§ 924(a)(2) would apply to those counts. Accordingly, Rhodes is entitled to be resentenced free

of the armed career criminal designation that was incorrectly imposed.14

CONCLUSION

Petitioner Jimmy Rhodes’ Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241

(Doc. 1) is GRANTED and the following relief is ORDERED:

1. The career-offender-enhanced sentence of 260 months for Counts 1 and 3 imposed

upon Jimmy Eugene Rhodes by the Western District of Oklahoma in Case No. 01-

cr-0202-R-1 is VACATED.

2. Rhodes shall be resentenced forthwith by the Western District of Oklahoma.

3. The Clerk of Court is DIRECTED to enter judgment in favor of Rhodes.

4. The Clerk of Court is DIRECTED to furnish certified copies of this Order and the

Judgment entered in this case to the Bureau of Prisons, the United States Attorney

for the Western District of Oklahoma, and the Clerk of the District court for the

Western District of Oklahoma for filing in Case No. 01-cr-0202-R-1.

IT IS SO ORDERED.

DATED: November 5, 2019

s/ Staci M. Yandle _

STACI M. YANDLE

United States District Judge

14 Respondent reserved the right to oppose Rhodes’ “Affidavit-Declaration in Support of New Sentencing” (Doc. 27),

which asserts that he is entitled to immediate release if he is granted relief pursuant to Mathis. (Doc. 28, p. 5 n.2).

This Court does not directly address the assertions raised by Rhodes in that document; instead, Rhodes’ arguments

are more appropriately raised in the Western District of Oklahoma in the context of the resentencing hearing ordered

herein.