Augustus Light v. John Caraway

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-1554

AUGUSTUS LIGHT,

Petitioner-Appellant,

v.

JOHN F. CARAWAY, Warden,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:12-cv-00292-JMS-MJD — Jane E. Magnus-Stinson, Judge.

____________________

ARGUED MAY 20, 2014 — DECIDED AUGUST 4, 2014

____________________

Before KANNE, TINDER, and HAMILTON, Circuit Judges.

TINDER, Circuit Judge. In 2003, Petitioner-Appellant Au-

gustus Light was convicted in Minnesota federal district

court on one count of firearm possession by a felon. The

presentence investigation report (“PSR”) prepared by the

probation office suggested that Light should be treated as an

“armed career criminal” under the Armed Career Criminal

Act, 18 U.S.C. § 924(e) (“ACCA”), and subject to the corre-

sponding offense level and criminal history category boosts

2 No. 13-1554

provided by § 4B1.4 of the Sentencing Guidelines. These en-

hancements apply when a defendant has “three previous

convictions … for a violent felony or a serious drug of-

fense.” 1 The ACCA paragraph of the PSR stated that “in ad-

dition to the defendant’s two qualifying juvenile acts of vio-

lence” he had “at least three prior convictions for a violent

felony or serious drug offense.” One of the prior adult con-

victions identified in the PSR as a violent felony was a con-

viction for criminal vehicular operation resulting in substan-

tial bodily harm (“criminal vehicular operation”). The

ACCA paragraph also identified two other adult convic-

tions—third-degree burglary and a third-degree controlled

substances crime. In the “Criminal History” section of the

PSR, the probation officer enumerated all of Light’s previous

criminal history, and specified that, inter alia, Light also had

a felony conviction for fleeing a peace officer in a motor ve-

hicle.

1 In relevant part, the portion of ACCA defining “violent felony” pro-

vides:

[T]he term “violent felony” means any crime punishable by im-

prisonment for a term exceeding one year, or any act of juvenile

delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment

for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threat-

ened use of physical force against the person of another;

or

(ii) is burglary, arson, or extortion, involves use of ex-

plosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another… .

18 U.S.C. § 924(e)(2)(B).

No. 13-1554 3

Following the recommendation in the PSR, the Minneso-

ta district court concluded that Light’s offense level was 33

with a criminal history category of VI, with a guideline im-

prisonment range of 235 to 293 months, rather than the

range of 120 to 150 months that it would have been without

the ACCA enhancement. In sentencing Light to 235 months’

incarceration, the district court did not specify which three

convictions supported the finding that Light was an armed

career criminal. After an unsuccessful direct appeal of his

conviction and sentence, Light challenged the ACCA en-

hancement in a 28 U.S.C. § 2255 petition, contending that the

use of the drug offense as one of the three predicate offenses

was improper. The district court denied this challenge and

declined a certificate of appealability, holding that Light’s

“criminal history include[d] a sufficient number of other

predicate offenses to support an armed career criminal sta-

tus without any reliance upon the objected to offense.” In

2008, the Supreme Court decided the case of Begay v. United

States, 553 U.S. 137, 139, 143 (2008), concluding that driving

under the influence of alcohol is not a “violent felony” as de-

fined by the ACCA, because the term “violent felony” ap-

plies only to crimes within the so-called “residual clause” of

the ACCA that are “roughly similar, in kind as well as de-

gree of risk posed,” to the specific felonies enumerated in the

statute. Light then sought leave from the Eighth Circuit to

file successive petitions under 28 U.S.C. § 2255, appealing

the use of his criminal vehicular operation conviction as a

predicate offense for the ACCA enhancement. The Eighth

Circuit denied those requests.

He then filed a pro se habeas petition under 28 U.S.C.

§ 2241 in the Southern District of Indiana, where he is incar-

cerated. (The venue requirement in § 2241 is different from

4 No. 13-1554

the venue requirement in § 2255: while an action under the

latter must be brought in the district of conviction, a petition

under § 2241 must be brought in the district of incarcera-

tion.) In filing his petition, Light relied on the “savings

clause,” 28 U.S.C. § 2255(e), which provides that

An application for a writ of habeas corpus in behalf of

a prisoner who is authorized to apply for relief by

motion pursuant to this section, shall not be enter-

tained if it appears that the applicant has failed to ap-

ply for relief, by motion, to the court which sentenced

him, or that such court has denied him relief, unless it

also appears that the remedy by motion is inadequate

or ineffective to test the legality of his detention.

His petition contended that in light of Begay, he was enti-

tled to a sentence reduction because one of his predicate

ACCA convictions did not qualify as a “violent felony.” The

Indiana district court dismissed the habeas petition on the

grounds that relief under § 2255 had been available to him

and had not been “inadequate or ineffective to test the legali-

ty of his detention,” and consequently Light did not qualify

for the savings clause. The district court reasoned that “the

remedy afforded by § 2255 was anything but ‘unavailable’ or

ineffective to test the validity” of Light’s conviction. Light

timely appealed. We review the denial of his habeas petition

de novo, and all of the district court’s factual determinations

for clear error. Blake v. United States, 723 F.3d 870, 879 (7th

Cir. 2013).

No. 13-1554 5

I

We begin with the threshold question of whether Light

qualifies for the savings clause. Ordinarily a federal prisoner

seeking to attack his sentence or conviction collaterally must

bring an action under § 2255, “the federal prisoner’s substi-

tute for habeas corpus,” in the district of conviction. Brown v.

Rios, 696 F.3d 638, 640 (7th Cir. 2012). The “essential func-

tion” of § 2255 “is to give a prisoner a reasonable opportuni-

ty to obtain a reliable judicial determination of the funda-

mental legality of his conviction and sentence.” In re Daven-

port, 147 F.3d 605, 609 (7th Cir. 1998). Only in rare circum-

stances where § 2255 is “inadequate or ineffective to test the

legality of the prisoner’s detention” may relief be granted

under the federal habeas corpus statute, 28 U.S.C. § 2241,

Brown v. Rios, 696 F.3d at 640 (quoting 28 U.S.C. § 2255(e)),

and such an action must be brought in the district of incar-

ceration, 28 U.S.C. § 2241(a). Section 2255 provides a means

by which a prisoner may bring a second, successive § 2255

petition if he invokes “a new rule of constitutional law,

made retroactive to cases on collateral review by the Su-

preme Court, that was previously unavailable,” 28 U.S.C.

§ 2255(h)(2), but is silent on how a prisoner can challenge his

sentence based on a new and retroactive statutory decision,

Davenport, 147 F.3d at 610. For this reason, our circuit allows

for a § 2241 challenge based on a new statutory interpreta-

tion by the Supreme Court, provided three conditions set

forth in Davenport are satisfied:

First, the prisoner must show that he relies on a “stat-

utory-interpretation case,” rather than a “constitu-

tional case.” Second, the prisoner must show that he

relies on a retroactive decision that he could not have

6 No. 13-1554

invoked in his first § 2255 motion. “The third condi-

tion is that [the] sentence enhancement … have been a

grave enough error to be deemed a miscarriage of jus-

tice corrigible therefore in a habeas corpus proceed-

ing.”

Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (quoting

Brown v. Rios, 696 F.3d at 640) (internal citations omitted).

The first Davenport condition is not under contention

here; we have before noted that Begay was a statutory inter-

pretation case, and that this condition is satisfied in chal-

lenges based on Begay’s interpretation of “violent felony”

under the ACCA. Brown v. Rios, 696 F.3d at 640. Nor is the

third Davenport condition in dispute: we have concluded that

“fundamental sentencing defect[s],” such as “a misapplica-

tion of the [then-]mandatory career offender Guideline[,]

present[] a cognizable non-constitutional claim for initial col-

lateral relief because the error resulted in a miscarriage of

justice.” Brown v. Caraway, 719 F.3d at 587. We do not find,

and the government does not raise, a limiting principle that

would distinguish an erroneous application of a mandatory

Guideline from an erroneous enhancement under the

ACCA, and which would lead us to the conclusion that the

erroneous application of the ACCA is not a cognizable claim

for collateral relief.

We therefore review the second Davenport condition on-

ly. Light contends that the second Davenport condition is met

because Begay was a retroactive decision that could not have

been invoked in his first § 2255 motion. We have applied

two different tests in this context. In Brown v. Rios, we simp-

ly concluded that the prisoner could not have invoked Begay

because Begay hadn’t been decided by the time of the peti-

No. 13-1554 7

tioner’s first § 2255 motion. Brown v. Rios, 696 F.3d at 640.

Under this standard, Light would meet the second Davenport

prong because Begay was issued almost two years after

Light’s initial § 2255 motion. In other cases, however, we

have “employed a slightly higher standard,” requiring that

the prisoner “show that his claim was ‘foreclosed by binding

precedent’ at the time of his direct appeal and § 2255 mo-

tion.” Brown v. Caraway, 719 F.3d at 595 (quoting Hill v. Wer-

linger, 695 F.3d 644, 648 (7th Cir. 2012)). We reasoned that

“the fact that a position is novel does not allow a prisoner to

bypass section 2255 … . Only if the position is foreclosed (as

distinct from not being supported by—from being, in other

words, novel) by precedent is a § 2255 remedy inadequate.”

Hill, 695 F.3d at 648 (quoting Morales v. Bezy, 499 F.3d 668,

672 (7th Cir. 2008)) (internal quotation marks omitted). To

satisfy this standard, the prisoner must show that “if [he]

had made the argument he currently advances . . . he clearly

would have lost under” the precedent of the jurisdiction.

Brown v. Caraway, 719 F.3d at 595.

Binding precedent at the time of Light’s initial § 2255 mo-

tion barred his current claim that his criminal vehicular op-

eration conviction is not a violent felony under the ACCA. In

a case decided six months before Light’s initial § 2255 mo-

tion, the Eighth Circuit held that a “crime of violence” under

the ACCA was not “limited to violent crimes of active ag-

gression,” but that it included “conduct that presents a seri-

ous potential risk of physical injury to another,” regardless

of the offender’s intent. United States v. McCall, 439 F.3d 967,

970–71 (8th Cir. 2006). Light’s argument that criminal vehic-

ular operation—arguably not a crime of active aggression,

but one that involves serious risk of injury to another—was

not a crime of violence under the ACCA was thus foreclosed

8 No. 13-1554

under the Eighth Circuit’s jurisprudence at the time of his

initial § 2255 motion. Consistent with this fact, the Eighth

Circuit has stated in multiple cases subsequent to Begay that

the Supreme Court’s decision overruled the circuit’s prior

interpretations of what constitutes a violent crime for the

ACCA. See, e.g., United States v. Heikes, 525 F.3d 662, 664 (8th

Cir. 2008) (stating that in Begay, “the Supreme Court over-

ruled our interpretation of § 924(e)(1) and held driving un-

der the influence of alcohol is not a violent felony as defined

in the Armed Career Criminal Act”); United States v. Com-

stock, 531 F.3d 667, 679 (8th Cir. 2008) (quoting Heikes).We

believe that these facts suffice to meet the heightened

Hill/Brown v. Caraway standard that requires that the claim

have been foreclosed by existing binding law, not merely

unsupported by prior jurisprudence.

The government argues that because McCall concerned

the specific offense of driving while intoxicated, not criminal

vehicular operation, Light’s challenge was not foreclosed by

specific precedent. However, this argument ignores the fact

that the holding of McCall is phrased in sufficiently broad

language that encompasses both criminal vehicular opera-

tion and driving while intoxicated—both crimes that are not

“violent crimes of active aggression” like the enumerated

crimes in the ACCA, such as burglary, extortion, or arson.

And interpreting a court’s statements of this nature to en-

compass categories of logically-related offenses, rather than

only the specific offense in question, is indubitably the more

economical use of judicial resources.

Finding that Light satisfies all three Davenport factors and

was eligible to file a petition for habeas relief under the sav-

ings clause of § 2255(e), we proceed to the merits.

No. 13-1554 9

II

The district court never adjudicated Light’s § 2241 claim

on the merits, but our consideration of the merits leads us to

the same conclusion as the district court’s: Light is not eligi-

ble for relief. Through intervening changes in the law, one of

his prior predicate offenses for the ACCA enhancement no

longer qualifies, but one that was not previously a qualifying

predicate offense has become eligible. The net change is ze-

ro. Light is still eligible for the ACCA enhancement.

It is true that under current law, Light’s criminal vehicu-

lar operation conviction is no longer a qualifying predicate

offense for the ACCA enhancement. Criminal vehicular op-

eration is not specifically described or named in the violent

crimes definition of the statute, and the residual clause of the

definition “encompasses only purposeful crimes; crimes

with the mens rea of recklessness do not fall within its

scope.” United States v. Woods, 576 F.3d 400, 412–13 (7th Cir.

2009). “In Begay … the Court rejected a reading of the ACCA

that would have allowed the drunk driver’s intentional acts

of drinking and driving, followed by recklessness with re-

gard to the behavior that the statute made criminal (behavior

that represented the consequences of the intentional act of

drinking), to satisfy the statute.” Id. at 409. As with the

drunk driving statute in Begay, the Minnesota criminal ve-

hicular operation statute in effect at the time of Light’s con-

viction in 2001, Minn. Stat. § 609.21, did not require a mens

rea of deliberateness; the Minnesota statute required a mens

rea of recklessness: “gross[] negligen[ce]” or “negligen[ce] …

while under the influence of” alcohol or another controlled

substance. And because the criminal vehicular operation

charge does not qualify as a predicate crime of violence un-

10 No. 13-1554

der the ACCA, it cannot be counted as one of the three re-

quired for the sentencing enhancement.

However, in the intervening period between Light’s sen-

tencing and our review, the Supreme Court has also clarified

its understanding of the residual clause in a way which re-

flects on another one of Light’s convictions. His Minnesota

conviction for fleeing a peace officer in a vehicle was not

considered a violent crime when he was sentenced, but now

would be considered one. In Sykes v. United States, 131 S. Ct.

2267, 2270 (2011), the Supreme Court held that a conviction

for felony flight from a law enforcement officer in a vehicle

is a violent felony as the term is used by the ACCA. The

Court observed that “[w]hen a perpetrator defies a law en-

forcement command by fleeing in a car, the determination to

elude capture makes a lack of concern for the safety of prop-

erty and persons of pedestrians and other drivers an inher-

ent part of the offense.” Sykes, 131 S. Ct. at 2273–74. This “in-

difference” to collateral consequences and “risk of violence”

to police officers and bystanders places vehicular flight in

the class of violent crimes encompassed by the residual

clause of the ACCA. Id. The Eighth Circuit promptly adopt-

ed the Supreme Court’s rationale in United States v. Bartel,

698 F.3d 658, 662 (8th Cir. 2012), cert. denied, 133 S. Ct. 1481

(2013), holding that a defendant’s prior Minnesota vehicular

flight convictions—convictions identical to Light’s convic-

tion for fleeing a peace officer in a motor vehicle—qualified

as ACCA predicate offenses. Bartel remains good law in the

Eighth Circuit. See, e.g., United States v. Pate, No. 13-1207, ---

F.3d ---, 2014 WL 2535302, at *1 (8th Cir. Jun. 6, 2014).

Light argues that we should read Sykes to not apply to

the Minnesota statute under which he was convicted, in di-

No. 13-1554 11

rect contradiction of the Eighth Circuit’s jurisprudence on

this question. In the alternative, Light argues that we should

selectively take note of the change in law: he argues that

while the change in Begay should apply retroactively in his

favor, due process concerns should stop us from applying

Sykes and Bartel retroactively against him. We consider these

arguments in turn.

A

Light argues that the Minnesota statute under which he

was convicted is distinguishable from the Indiana statute in

Sykes. In dicta, Sykes noted that the structure of the vehicular

flight statute that was then in effect, Ind. Code § 35-44-3-3, 2

reflected the intent to treat all vehicle flight, whether aggra-

vated or not, “as crimes of the same magnitude.” Sykes, 131

S. Ct. at 2276. The Court based this observation on the fact

that both vehicle flight generally, and vehicle flight in which

the offender “operates a vehicle in a manner that creates a

substantial risk of bodily injury to another person,” were

categorized as class D felonies by the Indiana statute. Id.

Light points out that unlike the Indiana statute in Sykes,

Minnesota’s statute in effect at the time of Light’s vehicular

flight conviction penalized flight in a motor vehicle differ-

ently from flight that resulted in death or bodily injury. Sub-

division 3, the general vehicular flight clause, provided that

the perpetrator “may be sentenced to imprisonment for not

more than three years and one day or to payment of a fine of

not more than $5,000, or both.” Minn. Stat. § 609.487 subd. 3

(1999). By contrast, Subdivision 4, applying to aggravated

2Indiana’s law on resisting law enforcement by fleeing in a vehicle has

been amended and recodified as Ind. Code 35-44.1-3-1.

12 No. 13-1554

vehicular flight, provided three different levels of penalty:

“[i]f the course of fleeing results in death,” “[i]f the course of

fleeing results in great bodily harm,” and “[i]f the course of

fleeing results in substantial bodily harm.” Minn. Stat.

§ 609.487 subd. 4(a)–(c). Light argues that this distinction be-

tween the statutes is material: that because he was convicted

under the simple vehicular flight provision rather than the

aggravated one, his variety of vehicular flight was not a

crime of violence, at least not one that can be classified as a

violent felony under Sykes.

Light’s argument is faulty for several reasons. First, his

argument ignores the fact that the Court heavily leaned on

the risks created by felony vehicular flight, as opposed to the

outcome thereof, to determine that vehicle flight was a vio-

lent crime.

Risk of violence is inherent to vehicle flight. Between

the confrontations that initiate and terminate the inci-

dent, the intervening pursuit creates high risks of

crashes. It presents more certain risk as a categorical

matter than burglary. It is well known that when of-

fenders use motor vehicles as their means of escape

they create serious potential risks of physical injury to

others. Flight from a law enforcement officer invites,

even demands, pursuit. As that pursuit continues, the

risk of an accident accumulates. And having chosen

to flee, and thereby commit a crime, the perpetrator

has all the more reason to seek to avoid capture.

Sykes, 131 S. Ct. at 2274.

Just because the outcome of a particular defendant’s flight is

not death or bodily injury to others does not mean that the

No. 13-1554 13

defendant did not risk grave injury to others in attempting

flight in a vehicle. It is easy to imagine an extraordinarily

risky—yet quite lucky—perpetrator who flees from a police

officer by driving the wrong way on a bustling highway

with reckless disregard for the lives of his fellow drivers, yet

manages to avoid killing or seriously injuring anyone he en-

counters. Such a perpetrator would be punishable under

Subdivision 3 of the Minnesota statute, yet it is difficult to

see how the perpetrator would avoid the clear logic of Sykes.

Moreover, the Eighth Circuit has already considered this

specific question and concluded that a conviction under

Subdivision 3 of the Minnesota vehicular flight statute con-

stitutes a violent crime, one that qualifies as a predicate of-

fense for the ACCA enhancement. Shortly after Sykes was

decided, the Eighth Circuit followed the Court’s reasoning in

Bartel, “hold[ing] that a violation of Minnesota Statute

§ 609.487, subd. 3 presents a serious potential risk of physical

injury to another and is therefore a violent felony under the

ACCA.” Bartel, 698 F.3d at 662 (internal quotation marks

omitted). The Eighth Circuit recently “reaffirm[ed]” that Bar-

tel is good law, rejecting a defendant’s assertion that Minne-

sota’s generalized vehicle flight provision was not a violent

felony under the ACCA. Pate, 2014 WL 2535302, at *4. We

decline to contradict the Eighth Circuit’s sound interpreta-

tion of this statute and thereby create an unnecessary circuit

split.

14 No. 13-1554

B

In the alternative, Light argues that we should not con-

sider his vehicle flight conviction a predicate offense for the

ACCA enhancement for due process reasons. He argues that

neither the PSR nor the Minnesota district court ever identi-

fied his vehicle flight conviction as a predicate offense for

the purposes of the ACCA. It is true that “due process pro-

hibits retroactive application of any judicial construction of a

criminal statute [that] is unexpected and indefensible by ref-

erence to the law which has been expressed prior to the con-

duct in issue.” Rogers v. Tennessee, 532 U.S. 451, 455 (2001)

(internal quotation marks and citations omitted). However,

Light presents no evidence in support of his argument that

the Court’s interpretation that felony vehicular flight is a

violent crime was an unexpected and indefensible change,

“a novel construction of a criminal statute to conduct that

neither the statute nor any prior judicial decision has fairly

disclosed to be within its scope.” United States v. Lanier, 520

U.S. 259, 266 (1997). In essence, he argues that the decision in

Sykes post-dated his sentencing, and that he could not have

necessarily foreseen this change in the law at the time of his

sentencing hearing. Be that as it may, Sykes did not consti-

tute an “unexpected and indefensible” change; it was a reso-

lution of an uncertain question of law, an opportunity for the

Court to “clarify … prior opinions as new circumstances and

fact patterns present themselves.” Rogers, 532 U.S. at 461. In

recent years, the Court has spoken frequently on the scope of

the ACCA’s residual clause. See, e.g., Descamps v. United

States, 133 S. Ct. 2276 (2013) (a generic burglary conviction is

not a violent felony within the meaning of the ACCA); Sykes,

131 S. Ct. at 2267; Johnson v. United States, 559 U.S. 133 (2010)

(a battery conviction is not a violent felony within the scope

No. 13-1554 15

of the residual clause); Chambers v. United States, 555 U.S. 122

(2009) (failing to report is not a violent felony under the

ACCA); James v. United States, 550 U.S. 192 (2007) (attempted

burglary is a violent felony within meaning of the residual

clause). In light of the numerous recent cases elaborating on

the scope of the ACCA’s residual clause, we do not find per-

suasive Light’s argument that there was an element of un-

due surprise about the Supreme Court’s consideration of

whether felony flight is a violent crime.

This anti-retroactivity argument is even less persuasive

in the context of this case, as Light is simultaneously at-

tempting to benefit from a retroactive change in the law. We

cannot see why Light is entitled to a one-way ratchet, subject

only to changes in law that benefit him but immune from

changes in law that are not helpful.

III

For the foregoing reasons, we AFFIRM the decision below.