Nino Franklin v. Randy Keyes

In the

United States Court of Appeals

for the Seventh Circuit

____________________

No. 19-1758

NINO ALONZO FRANKLIN,

Petitioner-Appellant,

v.

RANDY KEYES, Warden,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 17-cv-1266 — James E. Shadid, Judge.

____________________

ARGUED MAY 21, 2021 — DECIDED APRIL 4, 2022

____________________

Before SYKES, Chief Judge, and RIPPLE and HAMILTON,

Circuit Judges.

SYKES, Chief Judge. This appeal raises yet another proce-

durally complex question about a federal prisoner’s access to

habeas review under 28 U.S.C. § 2241 via the “saving clause”

in 28 U.S.C. § 2255(e) as interpreted in In re Davenport,

147 F.3d 605 (7th Cir. 1998). We have addressed a cluster of

similar cases in the wake of the Supreme Court’s decision in

Mathis v. United States, 136 S. Ct. 2243 (2016), which clarified

2 No. 19-1758

how courts should classify prior convictions for purposes of

the enhanced penalties in the Armed Career Criminal Act

(“ACCA” or “the Act”), 18 U.S.C. § 924(e). Two of our

Mathis-based saving-clause cases are especially important

here: Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019), and

Guenther v. Marske, 997 F.3d 735 (7th Cir. 2021).

Nino Franklin was convicted and sentenced in 2014 in

the District of Minnesota for a federal firearms offense. The

court imposed an enhanced sentence under the ACCA based

on six of Franklin’s prior convictions, including three for

Minnesota burglary and two for Illinois residential burglary.

Franklin neither appealed nor pursued § 2255 collateral

relief in the sentencing court within a year of the date on

which the judgment became final. 28 U.S.C. § 2255(f)(1).

Soon after Mathis, however, he filed a petition for habeas

corpus under § 2241 in the Central District of Illinois, where

he was confined. Relying on Mathis, he argued that he was

wrongly sentenced as an armed career criminal. He was on

solid ground about the Minnesota burglary convictions: as

Mathis clarified, they should not have been counted as

ACCA predicates. See Guenther, 997 F.3d at 741–42; Chazen,

938 F.3d at 859–60. But three qualifying convictions re-

mained—enough to support his enhanced sentence—so the

district judge denied relief. After Franklin appealed, we held

in United States v. Glispie that an Illinois conviction for resi-

dential burglary does not qualify as an ACCA predicate.

978 F.3d 502, 503 (7th Cir. 2020) (per curiam). That knocked

out two of the remaining predicates, leaving Franklin with

only one.

The government now concedes that Franklin’s sentence is

unlawful. But it opposes § 2241 relief, arguing that he has

No. 19-1758 3

not satisfied Davenport’s requirements to pass through the

saving-clause gateway because his claim relies not on Mathis

but on Glispie. The government maintains that Franklin

could have challenged the use of his two Illinois burglary

convictions as ACCA predicates on direct appeal or in a

timely § 2255 motion in the sentencing court.

We disagree and reverse the judgment. Though our deci-

sion in Glispie is important to Franklin’s ultimate entitlement

to relief on the merits, his claim rests fundamentally on

Mathis, which corrected the Eighth Circuit’s misunderstand-

ing of the method for classifying convictions under the

ACCA and other recidivist provisions. Before the Supreme

Court’s corrective action, any challenge to the use of his

Minnesota or his Illinois burglaries as ACCA predicates was

foreclosed in that circuit.

The only lingering question after Chazen, Guenther, and

Glispie is whether Franklin’s claim falls within the Davenport

line of cases in the first place. Davenport dealt with a prisoner

who was blocked from using § 2255 because of § 2255(h)’s

bar on successive motions, which made the remedy by

motion “inadequate or ineffective” within the meaning of

the saving clause. 147 F.3d at 610–11. Here, the limitations

period in § 2255(f)—not § 2255(h)’s bar on successive mo-

tions—blocked a Mathis-based motion in the sentencing

court. But the critical point under Davenport is that § 2255

never gave Franklin an opportunity to challenge his status as

an armed career criminal. At all times within Franklin’s one-

year window under § 2255(f), a challenge to his sentence was

destined to fail given Eighth Circuit precedent. Mathis

clarified that his sentence is unlawful, but § 2255 never

4 No. 19-1758

permitted him to make that claim, through no fault of his

own.

Accordingly, Franklin has satisfied the Davenport criteria

to access § 2241 habeas review through the § 2255(e) saving

clause. We remand with instructions to grant appropriate

habeas relief.

I. Background

A. Franklin’s Case in the District Court in Minnesota

In October 2013 Franklin pleaded guilty in the District of

Minnesota to unlawfully possessing a firearm as a felon,

18 U.S.C. § 922(g)(1). The offense normally carries a 10-year

maximum and no minimum sentence, id. § 924(a)(2), but

Franklin agreed that he qualified as an armed career crimi-

nal under the ACCA, which requires a 15-year minimum

sentence and lifts the 10-year maximum to life in prison if

the offender has three or more prior convictions for a “vio-

lent felony” or a “serious drug offense,” § 924(e). Only the

“violent felony” definition is at issue here.

The Act defines “violent felony” as any crime punishable

by a prison term “exceeding one year” that (1) “has as an

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

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

“elements clause”); or (2) “is burglary, arson, or extortion,”

§ 924(e)(2)(B)(ii) (the “enumerated-offenses clause”); or

(3) “otherwise involves conduct that presents a serious

potential risk of physical injury to another,” id. (the “residual

clause”).

Franklin’s presentence report (“PSR”) identified six po-

tentially qualifying convictions in his criminal record:

No. 19-1758 5

• Two 1995 Illinois convictions for separate residential

burglaries, 720 ILL. COMP. STAT. 5/19-3 (1995) (amend-

ed 2001), committed in 1993 and 1994;

• One 1995 Illinois conviction for aggravated kidnap-

ping/armed robbery, id. §§ 5/10-2, 5/18-2;

• One 2006 Minnesota conviction for second-degree

burglary, MINN. STAT. § 609.582(2);

• One 2006 Minnesota conviction for third-degree bur-

glary, id. § 609.582(3); and

• One 2012 Minnesota conviction for second-degree

burglary, § 609.582(2).

Franklin’s case proceeded to sentencing in May 2014.

Consistent with the recommendations in the PSR, the judge

found that Franklin qualified for the ACCA’s enhanced

penalties and imposed a 200-month sentence. Franklin did

not appeal. Nor did he seek collateral relief in the sentencing

court under § 2255 within the statutory limitations period—

that is, within a year of the date on which the judgment

became final. § 2255(f)(1). A § 2255 motion is the default—

and usually the exclusive—vehicle for federal prisoners to

seek collateral relief.

B. New Legal Developments

The developments that knocked out Franklin’s Minnesota

and Illinois burglary convictions as ACCA predicates began

two years after he was sentenced but proceeded on slightly

different tracks. It started with the doctrinal shift for

Minnesota burglary in response to Mathis, which we dis-

cussed in depth in Chazen, 938 F.3d at 857–60. Guenther

6 No. 19-1758

provides a shortened version of this history, 997 F.3d at 739–

41, and here we can be even more abbreviated.

The crimes of second- and third-degree burglary in

Minnesota are enumerated in “a single statute and start from

the same basic definition” but vary based on “different sets

of aggravating circumstances.” Id. at 739. The statute defines

second-degree burglary to cover anyone who “enters a

building without consent and with intent to commit a crime,

or enters a building without consent and commits a crime

while in the building, either directly or as an accomplice,”

provided that he either uses burglary tools or the entry

occurs at one of several enumerated locales. MINN. STAT.

§ 609.582(2). Third-degree burglary is defined almost identi-

cally but without the aggravating circumstances, covering

anyone who “enters a building without consent and with

intent to steal or commit any felony or gross misdemeanor

while in the building, or enters a building without consent

and steals or commits a felony or gross misdemeanor while

in the building.” Id. § 609.582(3).

Whether a prior conviction counts as an ACCA predicate

hinges on the application of what the Supreme Court has

called the “categorical approach,” which originated in its

decision in Taylor v. United States, 495 U.S. 575, 602 (1990).

The categorical approach requires an analysis of the statuto-

ry definition of the crime of conviction rather than the

particular facts of the underlying case. Id. at 600–01. As

applied to the enumerated-offenses clause of the violent-

felony definition, the categorical approach compares the

statutory definition of the crime to the “generic” version of

the offense enumerated in the ACCA. Id. at 598. As Taylor

held, generic burglary for ACCA purposes consists of the

No. 19-1758 7

following elements: “an unlawful or unprivileged entry into,

or remaining in, a building or other structure, with intent to

commit a crime.” Id.

Accordingly, under the categorical approach, Franklin’s

three Minnesota burglary convictions qualify as violent-

felony ACCA predicates only if the statutory elements of the

second- and third-degree crimes categorically match (or are

narrower than) those of generic burglary. When he was

sentenced in May 2014, “Eighth Circuit precedent supported

a categorical match.” Guenther, 997 F.3d at 739 (citing United

States v. LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006)).

Two years later, however, the Supreme Court’s decision

in Mathis laid the groundwork for a change in course.1

Mathis provided crucial guidance on how to classify convic-

tions for ACCA purposes when the statute under which the

defendant was convicted is alternatively phrased. Briefly, if a

single, alternatively phrased criminal statute lists alternative

elements, “then the statute defines multiple separate crimes

and is said to be ‘divisible.’” Id. A divisible statute justifies

application of the “modified categorical approach,” which

permits the sentencing court to examine “a limited class of

documents (for example, the indictment, jury instructions, or

plea agreement and colloquy) to determine what crime, with

what elements, a defendant was convicted of.” Mathis, 136 S.

Ct. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26

(2005)).

1 Inthe interim, the Supreme Court held that the ACCA’s residual clause,

18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson v. United

States, 576 U.S. 591, 597 (2015). Johnson removes the possibility that

Franklin’s prior convictions could alternatively be classified as violent

felonies under that clause.

8 No. 19-1758

As Mathis clarified, however, the modified categorical

approach does not apply—and judges may not consult these

sources (the so-called Shepard documents)—when an alterna-

tively phrased statute has an “indivisible” structure, i.e.,

where “the statutory alternatives are simply different factual

means of committing the crime.” Guenther, 997 F.3d at 739. If

the alternatives in an indivisible state statute sweep more

broadly than the generic offense, then a conviction under

that statute does not qualify as an ACCA predicate “even if

[the defendant’s] conduct fits within the generic offense.”

Mathis, 136 S. Ct. at 2251.

Mathis’s elements–means guidance “narrowed the range

of state statutes that qualify as violent felony predicates

under the [ACCA].” Chazen, 938 F.3d at 855. This narrowing

effect had special force in the Eighth Circuit, where Mathis

arose (that case concerned Iowa’s burglary statute). 136 S. Ct.

at 2250. Before Mathis the Eighth Circuit applied the modi-

fied categorical approach to all cases involving convictions

under overbroad, alternatively phrased statutes without

regard to the elements–means distinction that is so central to

the concept of divisibility. Chazen, 938 F.3d at 857–58. That

circuit and two others (the Sixth and the Tenth) were mis-

reading the Court’s decision in Descamps v. United States,

570 U.S. 254 (2013), which had also endeavored to clarify the

modified categorical approach. Chazen, 938 F.3d at 858–59

(explaining the division among the circuits about the proper

application of the modified categorical approach after

Descamps and before Mathis). Laboring under this doctrinal

error, when confronted with a categorically overbroad

statute, courts in the Eighth Circuit looked to the Shepard

documents too freely, which had the effect of counting

convictions as ACCA predicates when they did not qualify.

No. 19-1758 9

Mathis corrected the Eighth Circuit’s entrenched misunder-

standing of divisibility and the modified categorical ap-

proach. 136 S. Ct. at 2250–51.

After Mathis the Eighth Circuit reversed course and rec-

ognized that the Minnesota crimes of second- and third-

degree burglary sweep more broadly than generic burglary,

and further, that the alternatives listed in each statute are

different factual means of committing the crime rather than

different elements of separate crimes. United States v.

Crumble, 878 F.3d 656, 661 (8th Cir. 2018) (second-degree

burglary); United States v. McArthur, 850 F.3d 925, 940 (8th

Cir. 2017) (third-degree burglary). The court thus concluded

that Minnesota burglary is a categorical mismatch with

Taylor’s generic burglary because the offense does not “re-

quire that the defendant have formed the intent to commit a

crime at the time of the nonconsensual entry or remaining

in” the burglarized structure. Crumble, 878 F.3d at 661 (quo-

tation marks omitted). And because the second- and third-

degree statutes are indivisible, the court recognized that the

modified categorical approach—i.e., checking the Shepard

documents to see if the defendant actually committed gener-

ic burglary—does not apply. Id. at 660–61; McArthur,

850 F.3d at 940. Our circuit followed suit in Van Cannon v.

United States, 890 F.3d 656, 664–65 (7th Cir. 2018). 2

2 As we explained in Guenther, the Eighth Circuit’s revised understand-

ing of Minnesota burglary may be somewhat in flux after Quarles v.

United States, 139 S. Ct. 1872 (2019). Guenther v. Marske, 997 F.3d 735, 741

(7th Cir. 2021) (citing Raymond v. United States, 933 F.3d 988, 992 (8th Cir.

2019)). But Quarles left our conclusion in Van Cannon intact. Id. Because

the government concedes that Franklin’s sentence is unlawful, we do not

need to address the effect of this uncertainty in the Eighth Circuit.

10 No. 19-1758

In February 2017—about eight months after Mathis and

just weeks before the Eighth Circuit decided McArthur—

Franklin returned to the Minnesota sentencing court with a

pro se motion for § 2255 relief. Relying on Mathis, he sought

resentencing, arguing that his ACCA-enhanced sentence is

unlawful. His motion came almost three years after the

judgment in his case became final, well outside the one-year

window provided by § 2255(f)(1). The government predicta-

bly responded that the motion was untimely. It further

argued that Mathis did not trigger § 2255(f)(3), which restarts

the clock if the prisoner’s motion invokes a newly recog-

nized right and is filed within one year of “the date on which

the right asserted was initially recognized by the Supreme

Court, if that right has been newly recognized by the Su-

preme Court and made retroactively applicable to cases on

collateral review.” Franklin accepted the government’s point

about untimeliness and moved to dismiss his § 2255 motion,

acknowledging that relief based on Mathis could come only

through § 2241. The Minnesota district judge accordingly

dismissed Franklin’s § 2255 motion without prejudice.

Three days later Franklin filed a pro se petition for habe-

as corpus under § 2241 in the Central District of Illinois, the

district where he was then confined. 3 See Webster v. Daniels,

784 F.3d 1123, 1144 (7th Cir. 2015) (en banc) (explaining that

§ 2241 petitions must be filed in the district of confinement).

The proceedings were stayed pending the Supreme Court’s

3 While this appeal has been pending, Franklin was transferred to the

federal prison in Oxford, Wisconsin. The change in Franklin’s custodian

does not affect our jurisdiction. See Harris v. Warden, 425 F.3d 386, 388

(7th Cir. 2005). We have substituted the warden at Oxford as the re-

spondent.

No. 19-1758 11

decision in United States v. Stitt, 139 S. Ct. 399 (2018), and the

judge in the meantime appointed the Federal Defender to

represent him.

Stitt did not affect Franklin’s case after all, so the pro-

ceedings resumed and the judge eventually denied relief,

holding that even without the Minnesota convictions, three

qualifying ACCA predicates remained: two Illinois convic-

tions for residential burglary and one for kidnapping. Our

precedent was clear at that time that the Illinois crime of

residential burglary qualified as an ACCA violent felony;

Eighth Circuit precedent was the same. See Dawkins v. United

States, 809 F.3d 953, 956 (7th Cir. 2016) (per curiam); United

States v. Maxwell, 363 F.3d 815, 821 (8th Cir. 2004). Alterna-

tively, the judge held that Franklin could not use § 2241

because he did not satisfy the strict requirements of

§ 2255(e)’s saving clause.

Franklin appealed, and the ground shifted again, knock-

ing out the Illinois burglary convictions as ACCA predicates.

At the time of Franklin’s offenses, the statute under which he

was convicted stated: “a person commits residential burgla-

ry [when he] knowingly and without authority enters the

dwelling place of another with the intent to commit therein a

felony or theft.” 720 ILL. COMP. STAT. 5/19-3(a) (1995). As

we’ve noted, when Franklin was sentenced in federal court

in 2014, Eighth Circuit precedent clearly held that this crime

categorically matched generic burglary. Maxwell, 363 F.3d at

821.

After he filed this appeal, however, a question arose in

our circuit about the meaning of “without authority” in the

Illinois residential-burglary statute. More specifically, in

United States v. Glispie, the defendant argued that under

12 No. 19-1758

Illinois’s limited-authority doctrine, a person can commit the

offense of residential burglary by exceeding the scope of an

otherwise lawful entry. 943 F.3d 358, 364–65 (7th Cir. 2019).

The limited-authority doctrine can be traced back to

People v. Weaver, 243 N.E.2d 245 (Ill. 1968). There the defend-

ant was convicted of burglary after he entered a public

laundromat with the intent to steal from vending machines.

The Illinois Supreme Court affirmed the conviction, describ-

ing the doctrine this way:

A criminal intent formulated after a lawful en-

try will not satisfy the statute. But authority to

enter a business building, or other building

open to the public, extends only to those who

enter with a purpose consistent with the reason

the building is open. An entry with intent to

commit a theft cannot be said to be within the

authority granted patrons of a laundromat.

Id. at 248 (citation omitted). “Weaver thus established that

one who enters a public building with the intent to commit a

crime automatically satisfies the unlawful entry requirement

of the Illinois burglary statute.” Glispie, 943 F.3d at 365.

When Glispie was first before this court, state law was

uncertain about whether the limited-authority doctrine

extended to the residential-burglary statute. 943 F.3d at 367–

68. If it did, then a defendant’s intent to commit a felony or

theft necessarily meant that his entry was without authority,

making an unlawful entry unnecessary. See id. at 369. That,

in turn, would make Illinois residential burglary broader

than Taylor’s generic burglary. Because of the ambiguity

about the doctrine’s reach, we certified to the Illinois

No. 19-1758 13

Supreme Court the question whether the limited-authority

doctrine applies to residential burglary. Id.

The court answered our certified question in the affirma-

tive, making clear that the limited-authority doctrine applies

to residential burglary. United States v. Glispie, 181 N.E.3d

719, 725 (Ill. 2020). Accordingly, we held that because the

Illinois residential-burglary statute is categorically broader

than generic burglary, a conviction for violating it cannot be

used to enhance a sentence under the ACCA. Glispie,

978 F.3d at 503.

With that, Franklin’s two Illinois burglary convictions

dropped out of his ACCA total, leaving him with only one

violent-felony predicate, not enough to support his ACCA-

enhanced sentence.

II. Discussion

As the foregoing discussion shows—and the government

now concedes—Franklin’s ACCA-enhanced sentence is

unlawful. That narrows the scope of this appeal to a proce-

dural question: is he eligible for § 2241 relief via § 2255(e) as

interpreted in Davenport?

Section 2255 ordinarily “provides the exclusive means for

a federal prisoner to collaterally attack his conviction or

sentence.” Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019).

As relevant here, since the enactment of the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), collateral

review under § 2255 is subject to two key procedural rules.

Section 2255(f)(1) sets a one-year statute of limitations that

runs “from the latest of” one of four qualifying events,

including “the date on which the judgment of conviction

becomes final.” And a prisoner is limited to just one motion,

14 No. 19-1758

with a “second or successive motion” permitted only if a

court certifies that the motion contains either “newly discov-

ered evidence” or 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).

If a motion is blocked by the limits imposed by either sub-

section (f) or subsection (h), collateral relief in the sentencing

court is unavailable.

But the saving clause in § 2255(e) preserves a pathway for

traditional habeas review under § 2241 “in a narrow set of

circumstances.” Guenther, 997 F.3d at 737. The opening is

quite limited: the statute says that a prisoner’s § 2241 peti-

tion “shall not be entertained” unless § 2255 “is inadequate

or ineffective to test the legality of his detention.” § 2255(e).

In Davenport we addressed the meaning of the phrase “inad-

equate or ineffective,” focusing on “the essential function of

habeas corpus” and “whether it is impaired … by the limita-

tions on the use of the remedy provided in [§] 2255.”

147 F.3d at 609. We held that a federal prisoner’s access to

§ 2241 through the saving-clause gateway depends on

whether—given the limits on the § 2255 remedy—he had “a

reasonable opportunity to obtain a reliable judicial determi-

nation of the fundamental legality of his conviction and

sentence.” Id. The inquiry is largely procedural. To access

§ 2241, a prisoner must establish that “a structural problem

in § 2255 … foreclose[d] even one round of effective collat-

eral review, unrelated to [his] own mistakes.” Poe v. LaRiva,

834 F.3d 770, 772 (7th Cir. 2016) (quotation marks omitted).

Davenport involved consolidated appeals brought by two

§ 2241 petitioners, but only one was permitted to proceed.

Sherman Nichols was convicted of using a firearm in the

No. 19-1758 15

commission of a drug offense in violation of 18 U.S.C.

§ 924(c). After an unsuccessful appeal and a failed § 2255

motion for collateral relief, the Supreme Court interpreted

the term “use” in § 924(c) to require “more than a showing

of mere possession.” Bailey v. United States, 516 U.S. 137, 144

(1995), superseded by statute, Act of Nov. 13, 1998, Pub. L. No.

105-386, 112 Stat. 3469, as recognized in United States v.

O’Brien, 560 U.S. 218, 232–33 (2010). Bailey upended circuit

precedent to the contrary, meaning that Nichols was convict-

ed and sentenced for conduct that the law does not make

criminal. Davenport, 147 F.3d at 610. But he could not seek

relief under § 2255 based on Bailey because § 2255(h)(2)

permits second or successive motions only for new rules of

constitutional law; Bailey was a statutory-interpretation

decision. Id.

In those circumstances we held that § 2255 was inade-

quate or ineffective within the meaning of the saving clause.

Id. We explained that “[a] procedure for postconviction relief

can fairly be termed inadequate when it is so configured as

to deny a convicted defendant any opportunity for judicial

rectification” of a fundamental defect in his conviction or

sentence, such as “having been imprisoned for a nonexistent

offense.” Id. at 611. Nichols’s case fit the bill. Bailey postdated

his § 2255 motion, so he “could not use a first motion under

[§ 2255] to obtain relief on a basis not yet established by

law.” Id. at 610. And “[h]e could not use a second or other

successive motion” because Bailey, as a statutory decision,

did not bring his claim within the exceptions to successive

motions specified in § 2255(h)(2). Id.

Finally, it would have been futile in his first § 2255 mo-

tion for Nichols to press the interpretation that Bailey en-

16 No. 19-1758

dorsed because the law in our circuit (where he was convict-

ed) was “firmly against him.” Id. Doing so, we explained,

“would just clog the judicial pipes”; it would “require

defendants, on pain of forfeiting all right to benefit from

future changes in the law, to include challenges to settled

law in their briefs on appeal and in postconviction filings.”

Id.

For these reasons, we concluded in Davenport that “[a]

federal prisoner should be permitted to seek habeas corpus

only if he had no reasonable opportunity to obtain earlier

judicial correction of a fundamental defect in his conviction

or sentence because the law changed after his first [§] 2255

motion.” Id. at 611.

We recently synthesized Davenport’s requirements as fol-

lows:

To pursue relief under § 2241, a petitioner must

establish that “(1) the claim relies on a statuto-

ry interpretation case, not a constitutional case,

and thus could not have been invoked by a

successive § 2255 motion; (2) the petitioner

could not have invoked the decision in his first

§ 2255 motion and the decision applies retroac-

tively; and (3) the error is grave enough to be

deemed a miscarriage of justice.”

Chazen, 938 F.3d at 856 (quoting Beason, 926 F.3d at 935).

As we’ve also recently noted, the Davenport test “has its

complexities and raises some difficult questions that to date

remain unanswered”—notably, questions regarding the

precise requirements for the first two conditions, including

whether the triggering change in the law must come from

No. 19-1758 17

the Supreme Court or can be a circuit-level decision.

Guenther, 997 F.3d at 741 & n.3; see also Chazen, 938 F.3d at

863–66 (Barrett, J., concurring). This case does not require us

to answer these thorny questions. Assuming Franklin’s case

falls within our Davenport doctrine at all (more on that later),

Chazen and Guenther make clear that he satisfies all three of

its requirements.

Starting with the first, Franklin’s § 2241 petition “relies at

least in part on Mathis, a statutory-interpretation case that ‘is

“new” as a functional and practical matter’ because it ‘inject-

ed much-needed clarity and direction into the law’ regard-

ing the application of the categorical approach.” Guenther,

997 F.3d at 742 (quoting Chazen, 938 F.3d at 862). Mathis led

to McArthur and Crumble, which in turn led to Van Cannon.

See id. As things now stand, it’s clear that the Minnesota

crimes of second- and third-degree burglary cannot serve as

ACCA predicates because the statutes are indivisible and

categorically broader than generic burglary. Id.

It’s true that Franklin’s entitlement to relief on the merits

for the Mathis error requires the addition of Glispie, which

precluded the use of Illinois residential-burglary convictions

as ACCA predicates on a routine application of Taylor. But

Franklin need not show that Mathis is sufficient by itself to

render his sentence unlawful. Van Cannon, 890 F.3d at 661–

62. The Mathis error is undisputed, and the error is prejudi-

cial in Franklin’s case because Glispie eliminates two of the

three remaining ACCA predicates needed to support his

18 No. 19-1758

enhanced sentence. In that sense, his case falls comfortably

within our reasoning and holding in Van Cannon. 4

Because Franklin’s petition is based on Mathis, he like-

wise satisfies the second Davenport requirement in the same

manner as in Chazen and Guenther. Any attempt at collateral

review would have been futile until after Mathis because

Eighth Circuit precedent was squarely against him, foreclos-

ing relief. Guenther, 997 F.3d at 742. And here, as in Guenther

and Chazen, the government “does not dispute that Mathis

applies retroactively to cases on collateral review.” Id.; accord

Chazen, 938 F.3d at 862 (“It is only after Mathis—a case

decided after Chazen’s § 2255 petition that the government

concedes is retroactive—that courts, including our court and

the Eighth Circuit, have concluded that Minnesota burglary

is indivisible because it lists alternative means of committing

a single crime.”).

Finally, Franklin has established that the error is grave

enough to be deemed a miscarriage of justice. The govern-

ment concedes this point too, so we can be brief. A “‘funda-

mental sentencing defect’—including an erroneous ACCA-

enhanced sentence—amounts to a ‘miscarriage of justice.’”

Guenther, 997 F.3d at 742 (quoting Light v. Caraway, 761 F.3d

809, 813 (7th Cir. 2014)); see also Chazen, 938 F.3d at 856. In

light of the government’s concession, there’s no need to

decide whether the merits of Franklin’s habeas claim are

governed by the law of the Eighth Circuit (the circuit of

4 The government says that Van Cannon is distinguishable because it

concerned a § 2255 motion, not a habeas petition under § 2241. That

distinction is irrelevant. The way a court counts ACCA predicates does

not vary based on the vehicle that a petitioner uses for his collateral

attack.

No. 19-1758 19

conviction) or this court (the circuit of confinement). See

Guenther, 997 F.3d at 742 (explaining the “choice-of-law

conundrum”).

With all three requirements satisfied, we return to the

question whether Franklin’s petition falls within Davenport

in the first place. To date our Davenport cases have involved

prisoners for whom § 2255(h) and its limits on successive

motions created the operative structural problem that im-

peded collateral review—more specifically, the absence of an

exception in § 2255(h) for new statutory cases (like Bailey and

Mathis, for example). Recall, however, that Franklin filed his

first § 2255 motion after the Supreme Court decided Mathis.

The bar on successive motions thus did not stand in the way

of a Mathis-based claim. The obstacle for him was § 2255(f)’s

time bar and the inability to use Mathis to restart the one-

year clock under § 2255(f)(3). 5

We have not yet considered whether Davenport applies

where § 2255(f)’s time bar blocks a new statutory claim. The

government urges us to distinguish Chazen and Guenther on

that basis and reject Franklin’s § 2241 claim. We see things

differently. In Franklin’s circumstances, the effect of

§ 2255(f)’s time bar makes § 2255 “inadequate or ineffective”

in essentially the same manner as in Davenport, so our

reasoning there applies to the procedural question here. At

its core, the saving clause as construed in Davenport permits

5 See Hanson v. United States, 941 F.3d 874, 877 (7th Cir. 2019) (explaining

that the petitioner “failed to show that the Supreme Court in Mathis

intended to create a new rule upon which the statute of limitations may

run”); cf. United States v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022) (stating

in dicta that Mathis did not create a new rule that “extended the normal

one-year time limit of § 2255(f)(1)” by operation of § 2255(f)(3)).

20 No. 19-1758

a prisoner to use § 2241 where a structural feature of § 2255

deprived him of any opportunity to correct a fundamental

defect in his conviction or sentence. Davenport, 147 F.3d at

611. A prisoner is denied that opportunity when through no

fault of his own, he cannot present the proper interpretation

of the statute underlying his conviction or sentence in a

§ 2255 motion—first because circuit precedent was “firmly

against him” and then because the statute blocks him from

presenting the new statutory argument. Id. at 610–11.

Franklin confronted precisely those circumstances here.

Eighth Circuit precedent squarely supported his ACCA-

enhanced sentence until well after the § 2255(f)(1) statute of

limitations expired. A timely § 2255 thus would have been

futile. In his situation, § 2255 never gave him an opportunity

to correct a fundamental defect in his sentence. Mathis

changed Eighth Circuit law after his one-year time limit

expired but did not restart the limitations clock under

§ 2255(f)(3), leaving him no remedy in the sentencing court

to correct the Mathis error.

Accepting the government’s position here would create

arbitrary distinctions between prisoners with essentially

identical claims. Franklin would be barred from using

§ 2241—even though he satisfies all three Davenport re-

quirements—simply because he refrained from filing a

timely § 2255 motion that would have been frivolous under

then-existing Eighth Circuit law. Yet he would be permitted

to access § 2241 if he had filed a doomed § 2255 motion

within a year of when his judgment became final. The same

result would follow if he had filed multiple frivolous § 2255

motions thereafter, even though under earlier law repetitive

filings would have been considered possible abuse of the

No. 19-1758 21

habeas writ. Our precedent neither requires nor supports

creating such perverse incentives. A prisoner need not file a

futile § 2255 motion and “clog the judicial pipes” merely to

preserve the possibility of invoking new statutory rules in

the future under the Davenport doctrine. Id. at 610.

We acknowledge that Franklin’s case isn’t a perfect fit

with the interpretive rationale of Davenport. We have earlier

explained that Davenport was probably a response to the

problem that in drafting AEDPA’s exceptions to § 2255(h)’s

rule against successive motions, “Congress may have over-

looked the possibility that new and retroactive statutory

decisions … could support collateral review.” Unthank v. Jett,

549 F.3d 534, 536 (7th Cir. 2008) (quotation marks omitted);

see also Chazen, 938 F.3d at 863 (Barrett, J., concurring) (not-

ing the possible “congressional oversight” in § 2255(h)). That

rationale doesn’t transfer easily to the time limits in § 2255(f).

Even so, permitting Franklin to use § 2241 opens the door to

habeas review no wider than Davenport already has.

The common denominator in our Davenport caselaw is

that § 2255 isn’t inadequate or ineffective “absent a compel-

ling showing that it was impossible to use § 2255 to cure the

defect identified in the § 2241 petition.” Lee v. Watson,

964 F.3d 663, 666 (7th Cir. 2020) (quotation marks omitted).

We do not lessen that burden here. But Franklin’s claim is

not any less “impossible” simply because § 2255(f) alone—

rather than the combined effect of § 2255(h) and § 2255(f)—

bars relief.

III. Conclusion

Davenport is not without controversy, but it remains the

law of our circuit. See Webster, 784 F.3d at 1136. Its rationale

22 No. 19-1758

governs here, and Franklin has satisfied its three require-

ments. Accordingly, he is eligible to proceed under § 2241.

Because his ACCA-enhanced sentence is unlawful, we

REVERSE and REMAND with instructions to grant appropriate

habeas relief.