Mitchell v. Warden

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL LEE MITCHELL, #21266-045, )

)

Petitioner, )

)

vs. ) Case No. 19-cv-0539-RJD1

)

WARDEN, FCI-GREENVILLE, )

)

Respondent. )

MEMORANDUM AND ORDER

DALY, Magistrate Judge:

Petitioner Michael Lee Mitchell, an inmate in the Bureau of Prisons, filed his First

Amended Petition for writ of habeas corpus under 28 U.S.C. § 2241 on July 7, 2019.2 (Doc. 15).

In 2009, Mitchell was sentenced to 180 months’ imprisonment after pleading guilty to being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Mitchell,

No. 09-cr-3012-RK-1, Doc. 21 (W.D. Mo. Sept. 9, 2009); (Doc. 19-5 herein). His sentence 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),3 based in part on three prior Missouri

felony convictions: namely, 1990 and 2000 convictions for second-degree burglary pursuant to

MO. REV. STAT. § 569.170 (1979), and a 2000 conviction for first-degree burglary pursuant to MO.

REV. STAT. § 569.160 (1979). Without the ACCA enhancement, Mitchell would have faced a

1 This case was assigned to the undersigned for final disposition upon consent of the parties pursuant to 28

U.S.C. § 636(c). See Doc. 14.

2 Mitchell filed his initial Petition on May 24, 2019, (Doc. 3), along with a Motion to Appoint Counsel filed

contemporaneously with his Petition. (Doc. 1). The Court appointed counsel and granted leave to file an

amended petition. (Docs. 4, 9).

3 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.

statutory maximum penalty of 10 years for his felon-in-possession conviction.4 18 U.S.C.

§ 924(a)(2).

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

his sentence enhancement based on these prior convictions and argues that he is entitled to be

resentenced without said enhancement. Specifically, Mitchell argues that the Missouri statutes of

his prior convictions are broader than the federal definition of burglary because they define

“inhabitable structures” to include ships, trailers, sleeping cars, airplanes, or other vehicles or

structures where people assemble for business, government, education, religion, entertainment or

public transportation, which criminalizes the burglary of vehicles (such as buses or subways) not

designed for overnight use. (Doc. 15, pp. 17–22). This, Mitchell argues, criminalizes more

conduct than the “generic” definition of burglary as defined by the Supreme Court. (Id.).

Mitchell also asserts that his underlying conviction under 18 U.S.C. § 922(g) was defective

because the government neither alleged nor proved that he had knowledge that he was a convicted

felon at the time he possessed a firearm, relying on the recent opinion in Rehaif v. United States,

– U.S. –, 139 S. Ct. 2191 (2019), in support of this argument. (Doc. 15, pp. 23–24).

Respondent opposes issuance of the Writ on several grounds. First, in an argument he

acknowledges is inconsistent with the current law of the Seventh Circuit, Respondent contends

4 Mitchell has 3 other prior convictions which were considered by the sentencing court. (Doc. 15, pp. 2,

22; Doc. 18-1, p. 6, ¶ 21). In the briefing related to his successive § 2255 motion, Mitchell conceded that

his Greene County, Missouri conviction for manufacturing methamphetamine qualified as a “serious drug

offense” for sentence enhancement purposes. (Doc. 19, p. 9). However, the Government conceded that

Mitchell’s Texas County, Missouri sexual assault conviction could no longer be counted as a “violent

felony” under the ACCA after Samuel Johnson v. United States, 576 U.S. –, 135 S. Ct. 2551 (2015). (Doc.

15, p. 22; Doc. 19, p. 9). The last conviction was in Phelps County, Missouri, for possession of ephedrine

with intent to manufacture methamphetamine. Mitchell argues that because the maximum penalty for that

offense was only 4 years, the court could not have counted it as a “serious drug offense” under the ACCA.

(Doc. 15, pp. 22-23). Regardless of whether that argument is accepted, if Mitchell’s 3 burglary convictions

are discounted, he no longer has 3 convictions for a violent felony or serious drug offense, as required for

the ACCA’s 15-year-minimum sentence enhancement to apply.

that inmates who have previously sought post-conviction relief under § 2255 may not rely upon

§ 2255(e)’s savings clause to challenge their sentences via a § 2241 petition. (Doc. 19, pp. 15–

23). Respondent also argues that (1) Mitchell knowingly and voluntarily waived his right to

collateral review of his sentence, foreclosing his Mathis claim (id. at pp. 23–27); (2) Mitchell

cannot properly bring his § 2241 claim via § 2255(e)’s savings clause because his Mathis theory

does not rely on a new rule of statutory interpretation that applies retroactively on collateral review,

(id. at pp. 27–31); (3) Mitchell’s Mathis claim fails on its merits because Missouri’s first- and

second-degree burglary statutes are properly considered violent felonies within the meaning of the

ACCA, (id. at pp. 32–42); and (4) Mitchell’s Rehaif claim fails on its merits because Mitchell was

not convicted of “a crime of which he was innocent,” and demonstrably possessed the knowledge

that he was a convicted felon to support his felon-in-possession conviction under 18 U.S.C.

§ 922(g)(1). (Doc. 19, pp. 42–50).

Mitchell replied to Respondent’s Response. (Doc. 21). This matter is now ripe for

resolution. For the reasons discussed below, Mitchell’s First Amended Habeas Petition (Doc. 15)

will be GRANTED IN PART to the extent that it relies on Mathis v. United States, – U.S. –, 136

S. Ct. 2243 (2016).

Relevant Facts and Procedural History

Plea and Sentencing

On May 13, 2009, Mitchell pleaded guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Mitchell, No. 09-cr-3012-RK-1,

Doc. 15 (W.D. Mo. May 13, 2009); (Doc. 19-3 herein). Mitchell entered into a written Plea

Agreement in which he agreed that he was properly considered an Armed Career Criminal based

on his criminal history, which explicitly included his prior Missouri first- and second-degree

burglary convictions, and also agreed that the minimum penalty for his conviction was fifteen (15)

years imprisonment. Id. at ¶¶ 2–5. Mitchell also agreed that he:

expressly waives his right to appeal his sentence, directly or collaterally, on any

ground except a sentence imposed in excess of the statutory maximum or an illegal

sentence, that is, sentencing error more serious than a misapplication of the

Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable

sentence.

Id. at ¶ 15.

The indictment charged that Mitchell had “been convicted of crimes punishable by

imprisonment for terms exceeding one year” and thereafter “knowingly possess[ed] a firearm” in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1), but did not specifically and

separately allege that Mitchell had knowledge of his convicted-felon status when he possessed a

firearm. Mitchell, No. 09-cr-3012-RK-1, Doc. 1, p. 1 (W.D. Mo. Feb. 24, 2009); (Doc. 19-2

herein). However, in the Plea Agreement, Mitchell did affirmatively agree that he “knowingly

committed [the] offense [charged in the indictment], and is in fact guilty of [said] offense,” as well

as agreeing that he “ha[d] previously been convicted of” several “felony offenses” prior to his

possession of the firearm in question. Doc. 19-2, pp. 1–3.

Mitchell’s Presentence Report (“PSR”) determined that his prior criminal history,

including his three Missouri burglary convictions, qualified him for the ACCA enhancement and

set his minimum term of imprisonment at 15 years (180 months) pursuant to 18 U.S.C.

§§ 922(g)(1) and 924(e). (Doc. 18-1, pp. 3, 6, 9–13, 22). In an addendum to the PSR, Mitchell

lodged several objections to some of the information contained therein to preserve certain

objections under the Fifth and Sixth Amendments of the United States Constitution—however,

Mitchell did not object to the PSR’s inclusion of “information expressly contained in the charging

documents of conviction, written plea agreements, judgments and transcripts of the change of plea

or sentencing hearings” as to his criminal history and prior convictions referenced in the PSR. Id.

at pp. 25–26.

The PSR determined Mitchell’s Sentencing Guideline range to be 168 to 210 months’

imprisonment based on a total offense level of 30 and a criminal history category of VI, but his

status as an armed career criminal resulted in an effective Guideline range of 180 to 210 months’

imprisonment. (Doc. 18-1, p. 22, ¶ 65). Mitchell was ultimately sentenced to 180 months

imprisonment, five years supervised release, and a $100 special assessment. Mitchell, No. 09-cr-

3012-RK-1, Doc. 21 (Sept. 9, 2009); (Doc. 19-5 herein).

Post-Conviction Challenges

Mitchell did not file a direct appeal. After being sentenced, Mitchell filed his first motion

under 28 U.S.C. § 2255, in which he argued that the statute of his conviction, 18 U.S.C.

§ 922(g)(1), violated the Second Amendment, rendering his incarceration a violation of his Fifth

Amendment due process rights and his guilty plea involuntary. Mitchell, No. 09-cr-3012-RK-1,

Doc. 25, p. 1. This motion was summarily denied by the sentencing court, and Mitchell did not

appeal that decision. Id. at p. 2.

Mitchell filed an application for authorization to file a successive § 2255 motion following

the Supreme Court’s decision in Samuel Johnson v. United States, 576 U.S. –, 135 S. Ct. 2551

(2015), and the Eighth Circuit granted his application on May 17, 2016. Mitchell v. United States,

No. 15-3295 (8th Cir. 2016). Mitchell proceeded with the § 2255 motion in the district court,

arguing that Johnson’s invalidation of the ACCA’s residual clause rendered his ACCA

enhancement void because his prior convictions qualified as predicate offenses only under the

now-unconstitutional residual clause. Mitchell v. United States, No. 16-cv-3194-RK, Doc. 1

(W.D. Mo. May 19, 2016). During the pendency of this motion, the Supreme Court decided Mathis

v. United States, – U.S. –, 136 S. Ct. 2243 (2016), and Mitchell incorporated additional arguments

based on Mathis into his reply briefing. Id. at Doc. 7, pp. 3–10.

The district court initially granted this § 2255 motion, citing both Johnson and Mathis in

support of re-sentencing Mitchell without the ACCA enhancement. Id. at Doc. 9. However, in a

subsequent Rule 59(e) motion to alter or amend the judgment, the government successfully argued

that Mitchell’s claims were based wholly on Mathis, a statutory interpretation case, and completely

unrelated to Johnson, a constitutional law case, therefore taking Mitchell’s motion outside the

permissible scope of a § 2255 motion. Id. at Doc. 26 (order granting Rule 59(e) motion, denying

§ 2255 motion, amending judgment, and denying a certificate of appealability). The Eighth Circuit

later affirmed the denial of a certificate of appealability, and dismissed Mitchell’s appeal. Mitchell

v. United States, No. 18-3249 (8th Cir. May 21, 2019). Mitchell then filed the instant habeas action

in May 2019. (Doc. 3).

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).

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. A § 2255 motion is ordinarily the “exclusive

means for a federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th

Cir. 2003). And, a prisoner is generally limited to only one challenge of his conviction and

sentence under § 2255. A prisoner 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, it is possible, under very limited circumstances, for a prisoner to challenge his

federal conviction or sentence under § 2241. 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.”

The Seventh Circuit has explained that, in order to fit within the savings clause following

Davenport, a petitioner must meet three conditions. 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).

Since Davenport, the Seventh Circuit has made it clear that “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

For the purpose of preserving the issue, Respondent first presents the Court with an

argument he admits is inconsistent with the binding precedent of this Circuit—that is, “inmates,

like petitioner, who previously challenged their convictions or sentences in a § 2255 petition may

not later challenge their convictions under § 2255(e)’s ‘saving clause’ based on a new case of

statutory interpretation where the underlying claim was cognizable, but unraised, in the previous

§ 2255 proceeding even if that claim would have likely failed under existing circuit precedent.”

(Doc. 19, pp. 15–27). As stated above, the Seventh Circuit, like the majority of the Circuit Courts

of Appeals,5 has specifically held to the contrary dating back to In re Davenport in 1998, and has

reiterated its savings clause test as recently as September 2019. See Chazen v. Marske, 938 F.3d

851, 856 (7th Cir. 2019). Because Davenport and its progeny remain binding precedent on this

Court, this argument must be rejected out of hand.

Effect of Plea Agreement

The Court finds Respondent’s argument that the terms of Mitchell’s written guilty plea

agreement waived his right to bring his Mathis argument in this action unpersuasive. It is true that

the Seventh Circuit and other courts in this District have enforced appeal and collateral attack

5 The Seventh Circuit’s interpretation of § 2255(e)’s savings clause is largely 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).

waivers where a petitioner only reserved the right to collaterally attack a sentence “imposed . . . in

excess of the Sentencing Guidelines” or a sentence not “within the maximum provided in the

statutes of conviction.” See United States v. Carson, 855 F.3d 828, 829–31 (7th Cir. 2017); Wilson

v. Werlich, No. 17-cv-778-DGW, 2019 WL 2524699, at *4–6 (S.D. Ill. June 19, 2019).

However, unlike the plea language at issue in Carson and Wilson, Mitchell’s plea

agreement carved out an additional exception to his collateral review waiver, reserving the right

to appeal both a “sentence imposed in excess of the statutory maximum” and “an illegal sentence.”

(Doc. 19-3, p. 11). The Seventh Circuit has repeatedly held that improperly or inaccurately

labeling someone as an armed career criminal or career offender under a mandatory, non-

discretionary sentencing scheme such as the ACCA or the pre-Booker Sentencing Guidelines,

respectively, is an “illegal” designation that “goes to the fundamental legality of [a prisoner’s]

sentence and asserts an error that constitutes a miscarriage of justice.” See Narvaez v. U.S., 674

F.3d 621, 623, 628, 630 (7th Cir. 2011); Brown v. Caraway, 719 F.3d 583, 587–88 (7th Cir. 2013);

Light v. Caraway, 761 F.3d 809, 812–13 (7th Cir. 2014) (the misapplication of the ACCA’s armed

career criminal designation, like the misapplication of a mandatory career offender Guideline

designation, is a “fundamental sentencing defect” that “result[s] in a miscarriage of justice”);

Chazen, 938 F.3d at 856.

Furthermore, in the Eighth Circuit, where Mitchell entered his plea, precedent holds that

“defendants cannot waive their right to appeal an illegal sentence[.]” DeRoo v. United States, 223

F.3d 919, 923 (8th Cir. 2000). And, as discussed below, the Eighth Circuit has determined that

the Missouri burglary statutes under which Mitchell was convicted do not support an ACCA

enhancement after Mathis. United States v. Naylor, 887 F.3d 397, 400 (8th Cir. 2018).

Because Mitchell, unlike the petitioners in Carson and Wilson, affirmatively reserved the

right to collaterally attack “an illegal sentence” in addition to a “sentence imposed in excess of the

statutory maximum,” (Doc. 19-3, p. 11), he has not waived his claim that the ACCA’s armed career

criminal designation was improperly applied to him under Mathis.

Savings Clause of 28 U.S.C. § 2255(e)

The next question in this case is whether Mitchell’s claim may be brought under the savings

clause of 28 U.S.C. § 2255(e). A claim brought pursuant to Mathis v. United States, 136 S. Ct.

2243 (2016), satisfies the first Davenport condition, 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, 938 F.3d at 856 (citing

Light v. Caraway, 761 F.3d 809, 813 (7th Cir. 2014)). Here, the ACCA enhancement increased

Mitchell’s potential punishment for his felon-in-possession conviction from a statutory maximum

of 10 years, to a statutory minimum of 15 years’ imprisonment. These precedents indicate that

Mitchell has satisfied the first and third elements of the savings clause.

As to the second condition, Mitchell could not have invoked the 2016 Mathis decision in

his initial § 2255 motion, which he filed in 2011. The Seventh Circuit has stated that “[a]n

independent claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241.”

Dawkins, 829 F.3d at 551 (citing Brown v. Caraway, 719 F.3d 583, 594–96 (7th Cir. 2013) and In

re Davenport, 147 F.3d 605, 611–12 (7th Cir. 1998)). Regarding the retroactive application of

Mathis, the Seventh Circuit observed in Holt v. United States, 843 F.3d at 722, that “substantive

decisions such as Mathis presumptively apply retroactively on collateral review.” See also

Montgomery v. Louisiana, –– U.S. ––, 136 S. Ct. 718, 729–32 (2016) (“This Court’s precedents

addressing the nature of substantive rules, their differences from procedural rules, and their history

of retroactive application establish that the Constitution requires substantive rules to have

retroactive effect regardless of when a conviction became final.”); Davis v. United States, 417 U.S.

333 (1974); Montana v. Cross, 829 F.3d 775, 783–84 (7th Cir. 2016).

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”). 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 set forth several alternative locations where

the burglary may take place, including a “building, structure, . . . land, water, or air vehicle.” Id.

at 2250. The Mathis court determined that the statute was “indivisible,” describing a single crime

with several possible modes, or “means,” of commission. Because the generic offense of burglary

is limited to unlawful entry into a “building or other structure” with intent to commit a crime, the

Mathis Court found the Iowa statute to be overbroad. Mathis, 136 S. Ct. at 2248, 2250 (quoting

Taylor v. United States, 495 U.S. 575, 598 (1990)). As such, the ACCA enhancement based on

that Iowa conviction could not stand – even though the records of the defendant’s Iowa case

contained facts showing that his actual offense conduct matched the elements of generic burglary.

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

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

categorical approach”) to analyze 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. On

the other hand, if the statute is “indivisible” – defining a single offense, but listing alternative

factual “means” of committing the crime – the modified categorical approach cannot be used to

refer to documents or engage in other fact-finding to discover the actual conduct that led to the

prior conviction. Chazen, 938 F.3d at 857–59; see also Van Cannon v. United States, 890 F.3d

656, 662–63 (7th Cir. 2018).

Before Mathis, the Eighth Circuit and others had rejected the distinction between “means”

and “elements,” and applied the modified categorical analysis to all statutes listing either

alternative elements or alternative means, when determining whether a prior conviction should

count for an armed-career-criminal enhancement. Chazen, 938 F.3d at 857–59. Meanwhile, other

circuits adhered to the means/elements distinction in determining whether a statute was divisible

and thus subject to the modified categorical analysis. Id. Mathis rejected the approach that had

been used in the Eighth, Tenth, and Sixth Circuits, holding that the modified categorical approach

may not be used in the case of an indivisible statute listing multiple means to satisfy a single

element. Id.; Mathis, 136 S. Ct. at 2253, 2248. 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, 890 F. 3d at 663 (“the modified categorical approach has no role to play” if the statute

is indivisible).

Retroactive Application of Mathis on Collateral Review

As to this second condition of the savings clause test, Respondent argues that “the holding

in Mathis did not announce a ‘new’ rule; rather, according to the Court’s own opinion, it merely

applied its prior precedent.” (Doc. 19, p. 29).

This argument has found success in this District in the past, as Respondent points out. In

Blue v. Werlich, the Court found that Mathis did not constitute a new rule of statutory construction,

noting the Supreme Court’s statement in Mathis that it was applying the analysis first articulated

in Taylor v. United States, 495 U.S. 575, 600–02 (1990). Blue v. Werlich, Case No. 17-cv-1215-

DRH, 2018 WL 6102844 (S.D. Ill. Nov. 21, 2018). The Court in Blue concluded that because the

reasoning in Mathis flowed from the precedents of Taylor and Descamps v. United States, 570

U.S. 254 (2013), the § 2241 petitioner could have raised a Mathis-like statutory interpretation

argument in a timely-filed motion under 28 U.S.C. § 2255. Blue, 2018 WL 6102844 at *5.

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). On Chazen’s substantive issue, the Seventh Circuit had

previously found that a Minnesota second-degree burglary conviction no longer qualified as a

“violent felony” for sentence-enhancement purposes. Chazen, 938 F.3d at 859 (citing Van Cannon

v. United States, 890 F.3d 656, 665 (7th Cir. 2018) (finding the Minnesota statute to be indivisible

and overbroad)).

On the question of whether Mathis would afford relief in the context of § 2241, the court

acknowledged that in past cases, it had articulated the second savings-clause requirement in

varying ways. Chazen, 938 F.3d at 861–62. These ranged from merely requiring a showing that

the new statutory-interpretation case had not been decided at the time of the habeas petitioner’s

first § 2255 motion (e.g., Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)), to the “slightly higher

standard” of demonstrating that the petitioner had been “foreclosed by binding precedent” from

raising his claim at the time of his initial § 2255 motion, or that it “would have been futile” to

assert the claim at that time because “the law was squarely against him.” Chazen, 938 F.3d at

861–62 (citing Brown v. Caraway, 719 F.3d 583, 595 (7th Cir. 2012), and Beason v. Marske, 926

F.3d 932, 936 (7th Cir. 2019)). In Chazen’s case, the court found that at the time he sought relief

under § 2255 in 2013, there was “no doubt” that his claim was foreclosed by precedent in the

Eighth Circuit (where he was convicted) holding that his Minnesota burglary conviction qualified

as a violent felony for the federal sentence enhancement. Chazen, 938 F.3d at 862. Further, 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.” Id. It was only after Mathis that the

Seventh and Eighth Circuits concluded that the Minnesota burglary statute is indivisible, and too

broad to serve as a predicate offense for a career-criminal enhancement. Id. Thus, “Mathis is

‘new’ as a functional and practical matter for federal inmates seeking relief from a mandatory

minimum sentence under the Act.” Chazen, 938 F.3d at 862.6

In light of the recent opinion in Chazen, as well as the Seventh Circuit’s discussion of

Mathis in Van Cannon, the Court concludes that Mathis set forth a new substantive rule of statutory

6 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.

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”). The Mathis opinion, by

prohibiting the use of certain prior convictions as sentence-enhancing predicates, meets the criteria

for retroactive application because it places “certain kinds of primary, private individual conduct

beyond the power of criminal law-making authority to proscribe,” and is a rule “prohibiting a

certain category of punishment for a class of defendants because of their status or offense.” See

Montgomery v. Louisiana, – U.S. –, 136 S. Ct. 718, 729 (2016).

Mitchell’s Mathis Claim Was Previously Unavailable

“Davenport’s second condition has two components: retroactivity and prior unavailability

of the challenge.” Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016). In order to bring his

claim within the scope of the savings clause, Mitchell must show that he could not have previously

raised the claim he now presents. As noted above, Mitchell could not have invoked the 2016

Mathis decision in the § 2255 motion he filed in 2011. But this does not dispose of the inquiry.

In two recent opinions, the Seventh Circuit discussed the test to be applied to evaluate the

“prior unavailability” component of the second savings clause condition. In Beason v. Marske,

the court stated that a § 2241 petitioner must show that 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)). The Chazen court, without stating which of its various articulations of this test should

control going forward, concluded that Chazen satisfied this savings clause 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 v. Marske, 938 F.3d 851, 862–63 (7th Cir. 2019). See also

Light v. Caraway, 761 F.3d 809, 813 (7th Cir. 2014) (noting that the circuit had “applied two

different tests” as to prior unavailability under Davenport).

Respondent asserts that Mitchell’s argument under Mathis was not actually made pursuant

to a new rule of statutory interpretation. (Doc. 19, pp. 29–31). Respondent does not, however, go

past this threshold issue into the next inquiry—whether Mitchell’s Mathis claim was unavailable

at the time he raised his first § 2255 motion. (Doc. 28, pp. 1–54). Seventh Circuit precedent on

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

habeas petitioner. See Chazen, 938 F.3d at 862–63; Prevatte v. Merlak, 865 F.3d 894, 897 (7th

Cir. 2017) (petitioner did not meet the second prong; he could have raised his argument in an

earlier proceeding because it was not foreclosed by circuit precedent); Montana v. Cross, 829 F.3d

775, 784 (7th Cir. 2016); Light, 761 F.3d at 813. As such, the relevant question is whether Mitchell

could have raised a Mathis-like argument in the Eighth Circuit in 2011.

Mitchell asserts that such an argument was not reasonably available to him in the Eighth

Circuit at the time of his § 2255 motion, (Doc. 21, p. 19), and the Court agrees. Mitchell’s chief

citation in support of this argument is United States v. Naylor, 887 F.3d 397, 400 (8th Cir. 2018)

(en banc). (Doc. 15, pp. 11–22; Doc. 21, pp. 9–10). In Naylor, the Eighth Circuit analyzed

Missouri’s second-degree burglary statute,7 contrasting its prior precedents with the Supreme

Court’s most recent guidance in Mathis. Naylor, 887 F.3d at 399–407. Before Mathis, the Eighth

Circuit had concluded Missouri’s second-degree burglary statute was a categorical match to the

generic definition of burglary set forth in Taylor v. United States, 495 U.S. 575, 602 (1990). See

United States v. Whitfield, 907 F.2d 798, 800 (8th Cir. 1990). In Whitfield, the Eighth Circuit

7 Mitchell’s three prior Missouri burglary convictions include a 2000 conviction for first-degree burglary.

However, the two crimes share the same unlawful entry and locational elements. MO. REV. STAT.

§§ 569.160, 569.170, 569.010(2) (1979); Naylor, 887 F.3d at 404. Thus, if one statute is overbroad due to

its locational element, both are.

analyzed the same Missouri second-degree burglary statute at issue in Naylor and the present case

after Whitfield challenged the use of his burglary conviction as an ACCA predicate offense. Id.

at 800. However, the Whitfield panel summarily concluded that the Missouri second-degree

burglary statute “contains the basic elements of unlawful or unprivileged entry into, or remaining

in, a building or structure, with intent to commit a crime.” Id. (internal citations omitted). Thus,

Whitfield held that a conviction for second-degree burglary in Missouri “is a violent felony for

purposes of enhancement [under the ACCA].” Id. The Eighth Circuit applied this approach

without determining whether the statute itself listed alternative elements or alternative means, as

explained much later in Mathis. Id.

Even after Mathis, the Eighth Circuit for a time held that Missouri’s second-degree

burglary statute sufficiently matched the generic definition of burglary under the modified

categorical approach. United States v. Sykes, 844 F.3d 712, 715–16 (8th Cir. 2016). However,

Sykes did not discuss in-depth whether the Missouri statute was divisible, an important prerequisite

in determining whether to apply the categorical approach or modified categorical approach.

Naylor, 887 F.3d at 400. It was not until 2018, on an en banc rehearing, that the Eighth Circuit

explicitly recognized that it could only apply the modified categorical approach to Missouri’s

burglary statute if it is divisible. Naylor, 887 F.3d at 400. After consulting Missouri case law,

statutory text, and other relevant sources, the Eighth Circuit concluded that “the Missouri second-

degree burglary statute is indivisible as to the phrase ‘building or inhabitable structure.’” Id. at

406–07. Because the Missouri statute’s definition of “inhabitable structure” is “broader than the

locational element of generic burglary,” id. at 400, a second-degree burglary conviction may no

longer serve as a predicate violent felony under the ACCA’s enumerated clause. Id. at 399

(overruling Sykes’ contrary holding).

As such, at the time of Mitchell’s direct appeal and first § 2255 motion, Eighth Circuit

precedent would have foreclosed his current theory under Mathis. Only in 2018 did the Eighth

Circuit recognize that it may not apply the modified categorical approach to Missouri’s second-

degree burglary statute without determining whether the statute was divisible or indivisible. After

conducting that necessary analysis, the Eighth Circuit concluded that (1) the statute was

indivisible, and (2) the statute was overbroad for the purposes of the ACCA. See Whitfield, 907

F.2d at 800; Sykes, 844 F.3d at 715–16; Naylor, 887 F.3d at 400, 406–07.

Based on Whitfield and subsequent cases decided before the 2018 Naylor opinion, the

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

forth herein in the Eighth Circuit at the time of his first § 2255 motion. Accordingly, Mitchell’s

Mathis claim satisfies the second prong of the Davenport test. Because Mitchell has satisfied all

three prongs of § 2255(e)’s savings clause, the Court proceeds to the merits of his Mathis claim.

Mitchell’s Missouri Burglary Convictions Do Not

Categorically Match the Generic Definition of Burglary

Mitchell challenges the classification of his 1990 and 2000 convictions for second-degree

burglary pursuant to MO. REV. STAT. § 569.170 (1979), and his 2000 conviction for first-degree

burglary pursuant to MO. REV. STAT. § 569.160 (1979), as violent felonies under 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).

Though not raised by the parties, a review of the Seventh Circuit’s recent decision in

Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019), identifies a potential issue for the Court to

consider: which Circuit Court of Appeals’ substantive law should apply to the merits of Mitchell’s

Mathis claim—the Seventh Circuit, where Mitchell is currently incarcerated, or the Eighth Circuit,

where Mitchell was convicted and sentenced? As the Chazen concurrence noted, the Seventh

Circuit has not given explicit guidance on that particular issue. Id. at 864–66 (Barrett, J.,

concurring). In Chazen, the government conceded that the substantive law of the Seventh Circuit

applied to the merits of Chazen’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 apply because the contrary

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).8 While the Seventh

Circuit has not hesitated to cite to other circuits’ analysis and discussion of statutes at issue in any

given case, it has never cited these cases’ conclusions as mandatory, binding, or otherwise limiting

on its own analysis and conclusion. See, e.g., Van Cannon, 890 F.3d at 663–64 (“Our job is made

easier because the Eighth Circuit preceded us in applying [Mathis’] principles to Minnesota’s

burglary statute. . . . [T]he Eighth Circuit held that the statute is indivisible . . . and we see no

reason to disagree with our sister circuit, which has greater familiarity with Minnesota law.”);

Light v. Caraway, 761 F.3d 809, 816 (7th Cir. 2014) (“We decline to contradict the Eighth Circuit’s

8 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).

sound interpretation of this statute and thereby create an unnecessary circuit split.”).

However, any potential uncertainty as to whether Seventh Circuit or Eighth Circuit

substantive law should apply to Mitchell’s Mathis claim will not change the outcome here—

Mitchell’s Missouri burglary convictions are improper predicates for his ACCA enhancement

under the precedents of either circuit.

At the time of his 2000 conviction, Missouri’s first-degree burglary statute provided that:

A person commits the crime of burglary in the first degree if he knowingly enters

unlawfully or knowingly remains unlawfully in a building or inhabitable structure

for the purpose of committing a crime therein, and when in effecting entry or while

in the building or inhabitable structure or in immediate flight therefrom, he or

another participant in the crime:

(1) Is armed with explosives or a deadly weapon or;

(2) Causes or threatens immediate physical injury to any person who is not a

participant in the crime; or

(3) There is present in the structure another person who is not a participant in the

crime.

MO. REV. STAT. § 569.160 (1979). Likewise, at the time of his 1990 and 2000 convictions,

Missouri’s second-degree burglary statute provided that:

A person commits the crime of burglary in the second degree when he knowingly

enters unlawfully or knowingly remains unlawfully in a building or inhabitable

structure for the purpose of committing a crime therein.

MO. REV. STAT. § 569.170 (1979). Both statutes defined “inhabitable structure” as:

[A] ship, trailer, sleeping car, airplane, or other vehicle or structure:

(a) Where any person lives or carries on business or other calling; or

(b) Where people assemble for purposes of business, government, education,

religion, entertainment or public transportation; or

(c) Which is used for overnight accommodation of persons. Any such vehicle or

structure is “inhabitable” regardless of whether a person is actually present[.]

MO. REV. STAT. § 569.010 (1979). Citing Mathis, Mitchell argues that both statutes’

locational elements criminalize a plainly overbroad swath of conduct including the burglary of

ships, trailers, sleeping cars, airplanes, or any other vehicle or structure where people assemble for

a variety of reasons, not just where people live or are likely to live. (Doc. 15, pp. 17–18; Doc. 21,

pp. 9–12). According to Mitchell, both Missouri statutes would cover vehicles not adapted or

customarily used for overnight accommodation, such as public buses and subway trains,

demonstrating that the locational elements of these statutes are 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).9

Before its decision in Naylor, the Eighth Circuit had held that Missouri’s burglary statutes’

locational element categorically matched the generic definition of burglary, albeit while ignoring

entirely the underlying statutory definition of inhabitable structure referenced by the statute. See

Whitfield, 907 F.2d at 800 (Missouri second-degree burglary is a “violent felony” under the ACCA

because its text “contains the basic elements of unlawful or unprivileged entry into, or remaining

in, a building or structure, with intent to commit a crime” without citation or discussion of

Missouri’s statutory definition of “inhabitable structure”). After Mathis, the Eighth Circuit

recognized that MO. REV. STAT. § 569.010’s definition of “inhabitable structure” was broader than

the generic definition of burglary on its face, but determined that the statute presented buildings

and inhabitable structures as alternative elements, not alternative means of fulfilling the same

locational element. Sykes, 844 F.3d at 715–16. It came to that conclusion after employing the

modified categorical approach and determining that Sykes’ charging and sentencing documents

established that his prior burglary convictions were for the burglary of “buildings” and not

“inhabitable structures.” Id. at 715. However, it employed the modified categorical approach

without any analysis of whether the statute was divisible or indivisible, with no further discussion

9 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.

of the statutory text and Missouri case law interpreting the same, as required by Mathis. Id. at

715–16; Mathis, 136 S. Ct. at 2253, 2248.

Shortly after its decision in Sykes, the Eighth Circuit signaled a change in its application of

Taylor and Mathis, and began explicitly analyzing whether an underlying statute was divisible or

indivisible by looking to the statutory text and the states’ rules of decisions regarding the same

before applying the modified categorical approach. See, e.g., United States v. McArthur, 850 F.3d

925, 937–40 (8th Cir. 2017) (analyzing Minnesota burglary statutory text and state court decisions

regarding same to determine whether statute was divisible or indivisible prior to applying modified

categorical approach); United States v. Crumble, 878 F.3d 656, 660–62 (8th Cir. 2018). This

approach led the Eighth Circuit to re-evaluate its conclusion in Sykes with regard to the Missouri’s

second-degree burglary statute, and to affirmatively recognize the need to determine whether MO.

REV. STAT. § 569.070 (1979) was divisible or indivisible prior to applying the modified categorical

approach to save the statute from its overbroad language. Naylor, 887 F.3d at 399–407.

After an in-depth analysis of Missouri state precedents concerning the statute, the statutory

text itself, and other documents such as Missouri’s approved charging documents and jury

instructions, the Naylor panel concluded that “Missouri law establishes that the phrase ‘building

or inhabitable structure’ [in Missouri’s burglary statutes] specifies means, not elements.” Id. at

406. Accordingly, Naylor held that the statute’s indivisibility, combined with the self-evident

overbreadth of its text, meant that convictions pursuant to that statute could not be used as ACCA

predicate offenses. Id. at 406–07. Thus, under the substantive law of the Eighth Circuit, Mitchell’s

Mathis claim succeeds.

Respondent has not presented the Court with any Seventh Circuit precedent that would

lead to an opposite conclusion, and the Court has found none upon its own inquiry. The Seventh

Circuit has not decided a case involving the Missouri statute at issue here. Like the Eighth Circuit

in Naylor, the Seventh Circuit employs the same analytical steps when determining whether a

statute runs afoul of Taylor and Mathis. See, e.g., Van Cannon, 890 F.3d at 662–66 (citing with

approval the Eighth Circuit’s analysis and conclusion regarding categorical-approach analysis of

Minnesota statute); Smith v. United States, 877 F.3d 720 (7th Cir. 2017) (analyzing Illinois case

law, statutory text, and other documents in determining whether Illinois residential burglary statute

is proper predicate offense for ACCA enhancement under Taylor and its progeny). And, while not

bound by the Eighth Circuit’s conclusion, the Seventh Circuit has shown a willingness to rely upon

other circuits’ interpretation of statutes within their own jurisdiction so long as the same analytical

process is employed. Van Cannon, 890 F.3d at 662–66.

Though Respondent recognizes Naylor’s existence, he argues that the Supreme Court’s

subsequent decision in United States v. Stitt, 139 S. Ct. 399 (2018) effectively abrogated Naylor

and dictates a different result here. (Doc. 19, p. 32, n. 8, pp. 34–42). At issue in Stitt were

Tennessee and Arkansas burglary statutes that criminalized the burglary of a “habitation,” which

included “vehicle[s] . . . designed or adapted for the overnight accommodation of persons” and the

burglary of a “residential occupiable structure” which included vehicles “which [are] customarily

used for overnight accommodation of persons,” respectively. 139 S. Ct. at 404. Contrary to

Respondent’s argument (Doc. 19, pp. 32, 35-42), the Stitt decision did not expand the generic

definition of burglary to include the unlawful or unprivileged entry into any location where

burglary is likely to present a serious risk of violence, nor did it hold that a burglary statute passes

muster under Taylor and Mathis if it focuses upon circumstances where burglary is likely to present

such a risk. Stitt’s holding was clear, and limited—the ACCA’s statutory definition of “burglary”

includes “burglary of a structure or vehicle that has been adapted or is customarily used for

overnight accommodation.” Id. at 403–04, 407. If Missouri's burglary statutes only expanded

their reach to “ship[s], trailer[s], sleeping car[s], airplane[s], or other vehicle[s] or structure[s] . . .

used for [the] overnight accommodation of persons,” the Court would agree that Stitt would dictate

a result different from Naylor. However, unlike the statutes analyzed in Stitt, the Missouri statutes

of Mitchell’s convictions also criminalized the burglary of “ship[s], trailer[s], sleeping car[s],

airplane[s], or other vehicle[s] or structure[s] . . . [w]here people assemble for purposes of business,

government, education, religion, entertainment or public transportation.” MO. REV. STAT. §

569.010 (1979). Both Sykes and Naylor recognized these statutes as self-evidently broader than

the generic definition of burglary, and Stitt’s narrow holding is insufficient to change that

conclusion.10

For these reasons, the Court concludes that Mitchell’s Mathis claim succeeds on the merits,

and that his 1990 and 2000 Missouri first- and second-degree burglary convictions may not be

considered as proper predicates for his ACCA sentence enhancement because of the statutes’

overbreadth. Without counting those convictions, Mitchell no longer has the required three

predicate “violent felony” offenses to support the application of the 15-year mandatory minimum

sentence for his felon-in-possession conviction (Count 1) under 18 U.S.C. § 924(e)(1). Instead,

the 10-year maximum sentence in 18 U.S.C. § 924(a)(2) would apply. Accordingly, Mitchell is

entitled to be resentenced free of the armed-career-criminal designation that was incorrectly

10 Since Stitt was decided in December of 2018, the Eighth Circuit has continued to cite Naylor as binding

precedent in the context of the ACCA and has not hinted that Stitt has put its holding in jeopardy. See, e.g.,

Faulkner v. United States, 926 F.3d 475, 477 (8th Cir. 2019); Brown v. United States, 929 F.3d 554, 558–

59 (8th Cir. 2019).

imposed upon him.11 12

Conclusion

Mitchell’s First Amended Petition for writ of habeas corpus under 28 U.S.C. § 2241 (Doc.

15), is GRANTED IN PART to the extent it relies upon Mathis v. United States, – U.S. –, 136 S.

Ct. 2243 (2016). The following relief is ORDERED:

1. The career-offender-enhanced sentence of 180 months for Count 1 imposed upon

Michael Lee Mitchell by the Western District of Missouri in Case No. 09-cr-3012-

RK-1 is VACATED.

2. Mitchell shall be resentenced forthwith by the Western District of Missouri.

3. The Clerk of Court shall enter judgment in favor of Mitchell.

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 Missouri, and the Clerk of the District court for the

Western District of Missouri for filing in Case No. 09-cr-3012-RK-1.

IT IS SO ORDERED.

DATED: November 8, 2019

s/ Reona J. Daly

REONA J. DALY

UNITED STATES MAGISTRATE JUDGE

11 Mitchell asserts that he is entitled to immediate release if he is granted relief pursuant to Mathis. (Doc.

15, p. 24). This Court need not directly address that assertion; instead, Mitchell’s arguments are more

appropriately raised in the Western District of Missouri in the context of the resentencing hearing ordered

herein.

12 Because the Court is granting Mitchell relief pursuant to Mathis, it need not reach the merits of his claim

under Rehaif v. United States, though the Court notes the ample evidence presented to it by Respondent

that Mitchell was in fact aware of his status as a convicted felon prior to pleading guilty to violating 18

U.S.C. § 922(g)(1). (See Doc. 19, pp. 45–53). As Respondent points out, he may be permitted to present

additional admissible evidence of Mitchell’s actual guilt in the context of habeas corpus, Bousley v. United

States, 523 U.S. 614, 623–24 (1998), and such evidence appears to be substantial.