Allen Brown v. Jeffrey E. Krueger

In the

United States Court of Appeals

For the Seventh Circuit

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No. 20-1952

ALLEN BROWN,

Petitioner-Appellant,

v.

JEFFREY E. KRUEGER,

Respondent-Appellee.

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Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:17-cv-00240 — Jane Magnus-Stinson, Judge.

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ARGUED SEPTEMBER 17, 2021 — DECIDED FEBRUARY 10, 2022

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Before SYKES, Chief Judge, and FLAUM and KIRSCH, Circuit

Judges.

KIRSCH, Circuit Judge. In 2012, Allen Brown pled guilty in

the Eastern District of Missouri to unlawfully possessing a

firearm in violation of 18 U.S.C. § 922(g)(1). Brown admitted

to eight prior state law felony convictions, leading to an en-

hanced, 262 month sentence under the Armed Career Crimi-

nal Act, commonly known as the ACCA. After unsuccessfully

seeking habeas relief in the Eighth Circuit under 28 U.S.C.

2 No. 20-1952

§ 2255, Brown used 28 U.S.C. § 2241 to file this habeas petition

in our circuit, where he was then confined, contending that

the Supreme Court’s decision in Mathis v. United States, 136

S. Ct. 2243 (2016), leaves him without the three predicate of-

fenses necessary to sustain his ACCA-enhanced sentence. To

press his claim, Brown relies on In re Davenport, 147 F.3d 605

(7th Cir. 1998), in which we held that a federal prisoner may

seek § 2241 relief in the circuit of confinement where § 2255’s

tight limits on second or successive motions would deny that

prisoner even one opportunity to seek habeas relief based on

a newly issued statutory interpretation decision.

But Davenport driven § 2241 petitions present a thorny

choice of law question: are we to apply the law of the circuit

of confinement or that of the circuit of conviction? If the latter,

then Brown cannot prevail—Eighth Circuit precedent clearly

leaves him with the three predicate offenses necessary to sus-

tain his ACCA-enhanced sentence. In Chazen v. Marske, 938

F.3d 851 (7th Cir. 2019), we faced this same choice of law issue

but declined to decide it because the government conceded

that circuit of confinement law applied. Today, a similar

(though opposite) concession from Brown leads us to apply

Eighth Circuit law without resolving Davenport’s choice of

law question. Because Brown has the three predicate offenses

necessary to sustain his ACCA-enhanced sentence, we affirm

the district court’s denial of § 2241 relief.

I

In Allen Brown’s 2012 guilty plea, he acknowledged eight

prior Missouri felony convictions for offenses including re-

sisting arrest, armed criminal action, weapons exhibiting, dis-

charging a firearm from a vehicle, first degree vehicular tam-

pering, first degree assault, and twice selling controlled

No. 20-1952 3

substances. Brown further conceded that each of these of-

fenses was a serious drug offense or violent felony under the

ACCA, 18 U.S.C. § 924(e). These convictions caused Brown to

be designated an armed career criminal, leading to an

ACCA-enhanced 262 month sentence, the reasonableness of

which he unsuccessfully challenged in a direct appeal before

the Eighth Circuit.

Several years later, in 2016, Brown filed a motion under

28 U.S.C. § 2255 in the Eastern District of Missouri seeking to

vacate his sentence and conviction. He based this request for

habeas relief on Johnson v. United States, 576 U.S. 591 (2015), in

which the Supreme Court invalidated § 924(e)’s so-called re-

sidual clause as unconstitutionally vague. Brown argued that,

post-Johnson, none of his prior crimes was a violent felony un-

der § 924(e), leaving only his two drug selling convictions as

predicate offenses, one short of the three needed to sustain his

ACCA-enhanced sentence.

The district court disagreed. Relying on the Eighth Cir-

cuit’s holding in United States v. Pulliam, 566 F.3d 784 (8th Cir.

2009), it concluded that Brown’s weapons exhibiting offense

remained a violent felony under § 924(e)’s elements clause,

which Johnson left untouched. Because this left Brown with at

least three predicate offenses, that court denied Brown’s

§ 2255 motion.

The next year, in 2017, Brown relied on Davenport to file

this § 2241 petition in the Southern District of Indiana, where

he was then confined. Brown again argued that he lacked the

three predicate offenses necessary to support his ACCA-en-

hanced sentence, this time relying on the Supreme Court’s

2016 decision in Mathis. But this too was unsuccessful. The

district court for the Southern District of Indiana relied on a

4 No. 20-1952

post-Mathis Eighth Circuit decision reaffirming Pulliam to

conclude that Brown’s weapons exhibiting offense remained

a violent felony for ACCA purposes, leading it to deny

Brown’s petition for § 2241 relief. See United States v. Hudson,

851 F.3d 807, 809–10 (8th Cir. 2018). The present appeal fol-

lowed.

II

Under Davenport, a federal habeas petitioner may circum-

vent § 2255’s second-or-successive bar and seek § 2241 relief

in our circuit only if three conditions are satisfied. First, the

petitioner must rely on a statutory interpretation case because

(unlike constitutional cases) § 2255’s second-or-successive bar

contains no exception for statutory interpretation decisions.

Chazen, 938 F.3d at 856. Second, the petitioner must establish

that he was unable to raise his statutory claim when he filed

his original § 2255 motion and that the statutory interpreta-

tion decision relied upon applies retroactively. Id. Finally, the

legal error that would result from denying § 2241 relief must

be “grave enough to be deemed a miscarriage of justice.” Id.

The government concedes that the first two requirements

are met, which we accept for the purposes of this appeal. See

Id. at 865 (Barrett, J., concurring) (noting our discretion—alt-

hough not an obligation—to accept a concession on a point of

law). That leaves at issue only the third Davenport prong—

whether denial of § 2241 relief would be a miscarriage of jus-

tice. We’ve already held that a miscarriage of justice occurs

when a defendant erroneously receives an ACCA-enhanced

sentence. See Light v. Caraway, 761 F.3d 809, 813 (7th Cir. 2019).

And so the third Davenport prong in this case boils down to a

single merits determination: if Brown is correct that Mathis

leaves him without three ACCA-predicate offenses, then

No. 20-1952 5

failing to provide § 2241 relief would be a miscarriage of jus-

tice; if not, his sentence must stand.

Brown concedes that his two drug selling offenses are

ACCA predicates, so we need only determine whether one of

his other prior convictions remains a violent felony post-

Mathis. The district court began with Brown’s weapons exhib-

iting offense, which Eight Circuit law deems a violent felony

both pre- and post-Mathis; we follow the same course.

III

The ACCA imposes a 15 year minimum sentence on any

individual convicted of possessing a firearm in violation of

18 U.S.C. § 922(g)(1) while having three prior convictions for

violent felonies, serious drug offenses, or some combination

of both. 18 U.S.C. § 924(e). What constitutes a violent felony is

defined in two separate clauses of § 924(e)(2)(B). One—the

enumerated offenses clause—lists various generic offenses,

including burglary, arson, and extortion. § 924(e)(2)(B)(ii).

The other—the elements clause, which is the subject of to-

day’s analysis—encompasses any offense “ha[ving] as an ele-

ment the use, attempted use, or threatened use of physical

force against the person of another.” § 924(e)(2)(B)(i).

In determining whether a defendant’s prior conviction is

a violent felony, courts are to take a categorical approach,

comparing the elements of the defendant’s statute of convic-

tion against those of the offenses described by the two clauses

listed above. Mathis, 136 S. Ct. at 2248. If the elements of the

statute of conviction are any broader than those specified by

the ACCA, then it cannot be an ACCA predicate. Id. Mathis

clarified that courts must distinguish between the elements of

an offense (which a jury must find beyond a reasonable

6 No. 20-1952

doubt) and the statutorily-specified means of committing an

offense (which the jury needn’t agree on at all) when applying

the categorical approach. Id. In so doing, Mathis overturned

earlier Eighth Circuit categorical approach decisions, which

failed to draw this distinction. See id. at 2250–51.

Mathis’s overturning of these earlier Eighth Circuit deci-

sions is where Brown stakes today’s claim. Although he con-

cedes that his two drug selling offenses remain ACCA predi-

cates, he contends that none of his other six convictions is a

violent felony post-Mathis, leaving him one shy of the three

predicate offenses needed to uphold his sentence.

Brown must first overcome Pulliam, a pre-Mathis Eighth

Circuit decision holding that Brown’s weapons exhibiting of-

fense—codified at Mo. Rev. Stat. § 571.030.1(4)—is a violent

felony under the ACCA’s elements clause. See 566 F.3d at 788.

To do so, Brown argues that Pulliam was rendered a dead let-

ter by Mathis, which made all of the Eighth Circuit’s earlier

categorical approach decisions non-controlling. And on this

count, Brown is right: the Eighth Circuit has acknowledged

that its pre-Mathis categorical approach decisions are no

longer good law. See Brown v. United States, 929 F.3d 554, 559

(8th Cir. 2019).

But Brown faces a further difficulty. He’s conceded that

circuit of conviction law (here, that of the Eighth Circuit) gen-

erally applies to Davenport based habeas petitions. And alt-

hough Pulliam holds no force after Mathis, a post-Mathis

Eighth Circuit decision—United States v. Hudson—has once

again deemed § 571.030.1(4) a violent felony. See 851 F.3d at

810. If we apply Hudson, there’s nothing more to say: Brown

has the three predicate offenses needed to uphold his sen-

tence.

No. 20-1952 7

Brown therefore argues for an exception to his concession

that circuit of conviction law generally applies to Davenport

based habeas petitions. His position is that where a sister cir-

cuit has, in deeming a state law offense to be an ACCA pred-

icate, overlooked contrary decisions from the courts of that

state, we should go our own way in interpreting the state stat-

ute at issue.

Brown cites no authority supporting this position, and we

couldn’t find any. Although Brown cites United States v. Ma-

ness, 23 F.3d 1006 (6th Cir. 1994), that case is inapposite. Ma-

ness was a direct appeal, not a cross-circuit § 2241 petition,

and so did not raise a choice of law question. But regardless

of whether such an exception exists (we doubt it), it’s incon-

sequential here. There are no signs that the Eighth Circuit has

overlooked contrary Missouri state court holdings. The case

that Brown relies on is State v. Gheen, 41 S.W.3d 598 (Mo. Ct.

App. 2001), a Missouri Court of Appeals decision involving

the same weapons exhibiting offense of which Brown was

convicted. During a road rage incident, the defendant fired

several shots toward another driver, who was killed when a

bullet ricocheted. Id. at 601. This occurred as the defendant’s

girlfriend and her child watched from inside the car. Id. at

600–01.

Upon being charged with felony murder, the defendant

argued that the prosecution couldn’t prove the underlying

weapons exhibiting offense, which criminalizes “knowingly

exhibit[ing], in the presence of one or more persons, any

weapon readily capable of lethal use in an angry or threaten-

ing manner.” Id. at 605 (citing Mo. Rev. Stat. § 571.030.1(4)).

As he saw it, the evidence showed only that he had exhibited

the handgun in front of his girlfriend and her child (whom he

8 No. 20-1952

wasn’t threatening), and not that he had done so in an angry

or threatening manner. Id. at 605–06. But the Missouri Court

of Appeals rejected this argument, finding that the jury could

infer from the shots fired in the other driver’s direction that

the defendant had brandished his gun in a threatening man-

ner. Id. at 606.

In Brown’s view, Gheen demonstrates that § 571.030.1(4)

doesn’t necessarily entail the “use, attempted use, or threat-

ened use of physical force” against another person, as the

ACCA’s elements clause requires, given that the defendant

had not threatened his girlfriend or her child. And, Brown ar-

gues, this means § 571.030.1(4) criminalizes behavior outside

the scope of the elements clause, making it ineligible as an

ACCA predicate.

But we disagree: the Gheen defendant, by brandishing a

firearm in the presence of others, certainly threatened to use

(and then fatally did use) physical force against another per-

son, regardless of whether it was his victim or others who wit-

nessed that threat. That fits perfectly within the ACCA’s ele-

ments clause, which requires only the “threatened use of

physical force against the person … of another.” So we can’t

say that Gheen mandates a contrary conclusion from the

Eighth Circuit’s read of § 571.030.1(4). Moreover, a decision

from the Missouri Supreme Court—which controls over

Gheen, an intermediate appellate decision—supports treating

§ 571.030.1(4) as a violent felony under the elements clause.

In State v. Parkhurst, 845 S.W.2d 31 (Mo. 1992), the Missouri

Supreme Court suggested that § 571.030.1(4) categorically in-

volves threatened physical force against another. Specifically,

it held that a defendant may raise self-defense against a

§ 571.030.1(4) charge because “flourishing a weapon in the

No. 20-1952 9

presence of others is equated to an assault,” which results in

“a substantial risk of death or physical injury to those in

whose presence such conduct occurs.” Id. at 36. Parkhurst

could therefore be read to suggest that § 571.030.1(4) viola-

tions invariably involve the threatened use of force against

others, just as the ACCA’s elements clause requires.

Because Gheen isn’t at odds with—and Parkhurst seems to

support—the Eighth Circuit’s view of § 571.030.1(4), Brown’s

proposed exception isn’t satisfied. And that being so, we take

Brown at his word that Eighth Circuit law otherwise controls

the outcome of the appeal. See Chazen, 938 F.3d at 860 (accept-

ing the government’s choice of law concession in a Davenport

based appeal). In doing so, we decline to decide the Davenport

choice of law question, which “deserves our careful consider-

ation” and should be resolved only after the benefit of full

briefing on that issue from both parties in a future case. Id. at

865–66 (Barrett, J., concurring) (expressing skepticism that cir-

cuit of confinement law should ever apply in Davenport cases).

Given the Eighth Circuit’s holding that § 571.030.1(4) is a

violent felony under the ACCA’s elements clause, Brown has

the three predicate offenses necessary to sustain his enhanced

sentence. We therefore affirm the district court’s denial of

§ 2241 relief.

AFFIRMED