Royce Brown v. John F. Caraway

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1439

R OYCE B ROWN,

Petitioner-Appellant,

v.

JOHN F. C ARAWAY, W ARDEN,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 2:12-cv-00028-WTL-WGH—William T. Lawrence, Judge.

A RGUED JANUARY 18, 2013—D ECIDED M AY 10, 2013

Before P OSNER, F LAUM, and SYKES, Circuit Judges.

F LAUM , Circuit Judge. In 1996, a jury in the district

court for the District of Delaware convicted Royce

Brown of one count of possession with intent to

distribute cocaine base and one count of possession of

a firearm by a felon. At sentencing, the district court

classified Brown as a “career offender” under U.S.S.G.

§ 4B1.1. Brown filed a timely 28 U.S.C. § 2255 motion

arguing that “counsel was ineffective for failure to

object to his sentencing as a career offender which

2 No. 12-1439

resulted in his sentence being a minimum of 360 months

instead of between 262 and 327 months.” The district

court rejected this argument, and the Third Circuit

denied a certificate of appealability.

Now incarcerated in Indiana, Brown filed a pro se

habeas petition under 28 U.S.C. § 2241 in the Southern

District of Indiana, contending that under Begay v.

United States, 553 U.S. 137 (2008), his prior Delaware

conviction for Arson in the Third Degree did not

qualify as a crime of violence under U.S.S.G. § 4B1.1. The

district court dismissed his habeas petition sua sponte,

reasoning that “the savings clause embodied in 2255(e)

requires a claim of actual innocence directed to the under-

lying conviction, not merely the sentence.” Brown now

appeals, aided by appointed counsel.

As an initial matter, the district court erred in con-

cluding that challenges to a sentence (rather than the

underlying conviction) are categorically barred under

28 U.S.C. § 2241. On the merits, Brown is entitled to

relief under § 2241. Under Begay, Brown’s prior convic-

tion for Arson in the Third Degree under Delaware

law does not qualify as “generic” arson under the enum-

erated crimes clause of the career offender Guideline,

nor is it covered by the residual clause. We therefore

reverse the decision of the district court and hold

that Brown is entitled to relief under § 2241.

I. Background

In 1995, officers conducting a probation search of

Brown’s residence discovered 345 grams of crack cocaine,

No. 12-1439 3

$45,000 in currency, and a loaded .380 semiautomatic

handgun. On June 27, 1996, a jury in the district court

for the District of Delaware convicted Brown of one

count of possession with intent to distribute cocaine

base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(a),

and one count of possession of a firearm by a felon in vio-

lation of 18 U.S.C. § 922(a)(1).

The presentence investigation report recommended

sentencing Brown as a career offender under U.S.S.G.

§ 4B1.1, characterizing his two prior felony convictions—

one for second-degree assault in violation of 11 Del. C.

§ 612(a)(3); the other for Arson in the Third Degree in

violation of 11 Del. C. § 801—as “crimes of violence.”

Brown’s designation as a career offender resulted in

an offense level of 37 and a Guidelines range of

360 months to life. Absent the career offender enhance-

ment, Brown faced an offense level of 34, which when

combined with Brown’s criminal history category of VI,

would have resulted in a Guidelines range of 262 to

327 months. The court rejected Brown’s argument that

his assault conviction was not a crime of violence and

adopted the probation officer’s recommendation. The

court imposed a 360-month sentence on the drug charge

and a 120-month sentence on the gun charge to run con-

currently, with five years of supervised release. The

district court imposed this sentence prior to United States

v. Booker, 543 U.S. 220 (2005) and therefore viewed

the application of the Guidelines range as mandatory.

The Third Circuit affirmed.

In 2000, Brown filed a timely motion under 28 U.S.C.

§ 2255 to vacate his sentence. He argued that his counsel

4 No. 12-1439

was ineffective for failing to object to his sentencing as

a career offender, which resulted in a substantially

higher Guidelines range. The district court rejected this

argument, holding that the “record clearly supports a

finding of petitioner’s status as a career offender,” and

accordingly denied his motion as well as a certificate

of appealability. The Third Circuit also denied a certif-

icate of appealability.

Brown is currently incarcerated in the federal peniten-

tiary in Terre Haute, Indiana. On February 7, 2012, he

filed a pro se habeas petition under 28 U.S.C. § 2241 in the

District Court for the Southern District of Indiana. He

argued that under Begay v. United States, 553 U.S. 137

(2008), his prior Delaware conviction for Arson in the

Third Degree did not qualify as a “crime of violence”

under U.S.S.G § 4B1.1. He claimed that therefore he

was “actually innocent of being a career offender” and

accordingly that the sentencing court should have used

a Guidelines range of 262 to 327 months, rather than

360 months to life.

Two weeks after Brown filed this petition, and before

he served the Government, the district court dismissed

the habeas petition sua sponte. The court reasoned that

“the savings clause embodied in 2255(e) requires a claim

of actual innocence directed to the underlying convic-

tion, not merely the sentence.” It noted that Brown did

not contend that he was actually innocent of his under-

lying crimes, rather, he contended only that the career

offender designation should not have been applied to

him. The court therefore dismissed the petition without

soliciting any response from the Government.

No. 12-1439 5

Brown filed a timely notice of appeal. Because

Brown never served the Government with the petition,

the Government filed a motion for an order of non-in-

volvement with the appeal, which we granted. How-

ever, on November 19, 2012, we vacated the non-involve-

ment order and requested that the respondent file a

brief on or before December 28, 2102. The Govern-

ment complied.

II. Discussion

We review the denial of a § 2241 petition de novo. Hill

v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012). Federal

prisoners who seek to bring collateral attacks on their

conviction or sentences must ordinarily bring an action

under 28 U.S.C. § 2255, “the federal prisoner’s substitute

for habeas corpus.” Brown v. Rios, 696 F.3d 638, 640 (7th

Cir. 2012). However, a federal prisoner may petition

under § 2241 “if his section 2255 remedy ‘is inadequate

or ineffective to test the legality of his detention.’ ” Id.

(citing § 2255(e), the “Savings Clause”). In re Davenport,

147 F.3d 605 (7th Cir. 1998), established three conditions

for this exception to apply. Id. at 610-12. First, the pris-

oner must show that he relies on a “statutory-interpreta-

tion case,” rather than a “constitutional case.” Rios,

696 F.3d at 640. Second, the prisoner must show that he

relies on a retroactive decision that he could not have

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

tion is that [the] sentence enhancement . . . have been

a grave enough error to be deemed a miscarriage of

justice corrigible therefore in a habeas corpus proceed-

6 No. 12-1439

ing.” Id.; see also Davenport, 147 F.3d at 611 (a prisoner

must show “a fundamental defect in his conviction

or sentence”).

In a recent collateral challenge also based on Begay,

we found that the first two conditions were clearly satis-

fied. Rios, 696 F.3d at 640. We recognized that “Begay

was not a constitutional case, but a statutory-interpreta-

tion case,” thus satisfying Davenport’s first consideration,

and that there, the prisoner “could not have invoked

[Begay] in his first section 2255 motion either, because

Begay hadn’t yet been decided.” Id. Likewise here, Brown

brings a challenge based on Begay (the same statutory

interpretation case), which had not been decided as of

Brown’s first § 2255 motion. The Government does not

contest the fact that Begay was a statutory interpretation

case, though it does dispute the notion that Brown

could not have raised his current argument in his

first section 2255 motion. We conclude that Brown

could not have raised his current argument in his first

section 2255 motion because it was foreclosed by

binding precedent at that time; this argument will be

addressed in greater detail in Section B, infra, in light of

our more recent reasoning in Werlinger. 695 F.3d at 648.

The Government concedes that the third Davenport

consideration is satisfied here, and we think rightfully

so. The Government reasons that our decision in Narvaez

v. United States, 674 F.3d 621 (7th Cir. 2011), requires

finding that the erroneous application of the mandatory

career offender Guideline is a fundamental sentencing

defect that can be remedied under § 2241. Narvaez con-

cluded that a misapplication of the mandatory career

No. 12-1439 7

offender Guideline presented a cognizable non-constitu-

tional claim for initial collateral relief because the error

resulted in a miscarriage of justice. Id. at 627-28. Although

Narvaez was a § 2255 case, the Government concedes

that its holding forecloses a credible argument that an

identical error is not a “fundamental sentencing defect”

justifying successive § 2241 relief under Davenport.1

1

In reaching the contrary conclusion that a prisoner may

never bring a collateral challenge to a sentence under § 2241,

the district court misinterpreted our decision in Unthank v.

Jett, 549 F.3d 534 (7th Cir. 2008). In that case, the prisoner

brought a § 2241 action challenging his sentence, but he did not

allege that a retroactively applicable Supreme Court decision

(like Begay) entitled him to relief. Id. at 534-35. He instead

contended that he was “entitled to a reduced punishment

because, after sentence was imposed in his federal case, one

of his state convictions was vacated,” and that “[r]ecalculating

his criminal history in light of the state court’s decision

would (or at least could) have led to a lower federal pen-

alty.” Id. We concluded that the prisoner could not seek

savings clause relief because he failed to prove that § 2255

was “inadequate or ineffective.” Id. at 536. Unthank was not

entitled to relief under § 2241 because he did not contend that

“a glitch in § 2255 prevent[ed] application to his situation of

a retroactive decision of the Supreme Court.” Id. In the present

case, by contrast, Brown alleges precisely that: he argues

that he is entitled to relief under a retroactively applicable

Supreme Court decision (Begay), and that “Congress may have

overlooked the possibility that new and retroactive statutory

decisions could support collateral review.” Taylor v. Gilkey,

314 F.3d 832, 835 (7th Cir. 2002). Brown’s claim therefore

(continued...)

8 No. 12-1439

The Government is correct. In Narvaez, we concluded

that Begay’s postconviction clarification in the law dem-

onstrated that a § 2255 petitioner had been improp-

erly designated as a career offender. As a result, “his

period of incarceration exceed[ed] that permitted by law

and constitute[d] a miscarriage of justice.” Id. at 623. We

reasoned that “[t]he career offender status illegally in-

creased [the defendant’s] sentence approximately five

years beyond that authorized by the sentencing scheme,”

which went to the “fundamental legality of his sentence

and assert[ed] an error that constitute[d] a miscarriage

of justice.” Id. at 629. Although Narvaez arose in a

distinct procedural context (there, the § 2255 motion

was petitioner’s first), its reasoning regarding the nature

of the error applies here: To classify an individual as

belonging to a “subgroup of defendants, repeat violent

offenders” is to “increase, dramatically, the point of

departure of his sentence” and accordingly is “certainly

as serious as the most grievous misinformation that

has been the basis for granting habeas relief.” Id. Thus,

the misapplication of the sentencing guidelines, at least

where (as here) the defendant was sentenced in the pre-

1

(...continued)

falls into the “special and very narrow exception” to the gen-

eral rule, emphasized in Unthank, that sentencing errors are

generally not cognizable on collateral review: he alleges that

a “postconviction clarification in the law has rendered

the sentencing court’s decision unlawful.” Narvaez, 674 F.3d

at 627.

No. 12-1439 9

Booker era, represents a fundamental defect that con-

stitutes a miscarriage of justice corrigible in a § 2241

proceeding.

In reaching this conclusion, we depart from the views

of some of our sister circuits. For example, in Gilbert v.

United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), a

case also involving a collateral Begay claim, the Eleventh

Circuit addressed the question of whether “the savings

clause of § 2255(e) appl[ies] to claims that the sen-

tencing guidelines were misapplied in the pre-Booker

mandatory guidelines era in a way that resulted in a

substantially longer sentence that does not exceed the

statutory maximum.” Id. at 1306. The court determined

that savings clause relief is unavailable in those circum-

stances, noting that the clause’s text “does not indicate

that it authorizes the filing of a § 2241 petition to

remedy a miscalculation of the sentencing guidelines

that already has been, or may no longer be, raised in a

§ 2255 motion,” id. at 1307, and citing the “finality-busting

effects of permitting prisoners to use the savings clause

as a means of evading the second or successive mo-

tions bar,” id. at 1309. These policy interests prompted

the Eleventh Circuit to “decline Gilbert’s invitation to

undermine the finality of judgment principles by using

§ 2255(e) to knock down the second or successive

motions bar that Congress constructed in § 2255(h)” and

conclude that sentencing claims cannot be brought

under § 2241 via § 2255(e). Id. at 1313. The Fifth Circuit

has similarly disallowed federal prisoners from pursuing

relief under the savings clause when they challenge

only their status as career offenders, reasoning that the

10 No. 12-1439

savings clause is available only to prisoners asserting

actual innocence (i.e., that they were convicted of a nonex-

istent crime). See In re Bradford, 660 F.3d 226, 230 (5th

Cir. 2011).

We respectfully disagree with this interpretation of

the savings clause. The text of the clause focuses on the

legality of the prisoner’s detention, see § 2255(e) (ap-

plicable where § 2255 remedy is “inadequate or ineffec-

tive to test the legality of his detention”) (emphasis added);

it does not limit its scope to testing the legality of the

underlying criminal conviction. As indicated in our

discussion of Narvaez, sentences imposed pursuant to

erroneous interpretations of the mandatory guidelines

bear upon the legality of the petitioner’s detention for

purposes of the savings clause. See 674 F.3d at 629. For

a prisoner serving a sentence imposed when the guide-

lines were mandatory, a § 2241 habeas petition raising

a guidelines error “tests the legality of his detention”

within the meaning of the savings clause, § 2255(e),

because the guidelines had the force and effect of law;

the only lawful sentence was a guidelines sentence.

Accordingly, provided that the other Davenport condi-

tions are present, we conclude that a petitioner may

utilize the savings clause to challenge the misapplication

of the career offender Guideline, at least where, as here,

the defendant was sentenced in the pre-Booker era.2

2

Because our conclusion creates a conflict among the circuits,

we circulated the opinion before release to all judges in

(continued...)

No. 12-1439 11

We thus turn our attention to the merits. Although the

district court never adjudicated Brown’s § 2241 claim on

the merits, the Government contends that the district

court’s judgment should be affirmed on alternate grounds:

specifically, that Arson in the Third Degree under Dela-

ware law is a “crime of violence” for purposes of the

career offender enhancement. See In re UAL Corp., 468 F.3d

444, 449 (7th Cir. 2006) (“A winner may defend its judg-

ment on any ground preserved in the district court.”).

A defendant is a career offender if: (1) the defendant

was at least eighteen years old at the time of the instant

offense; (2) the instant offense is a felony that is either

a crime of violence or a controlled substance offense;

and (3) the defendant has at least two prior felony con-

victions for a crime of violence or controlled substance

offense. U.S.S.G. § 4B1.1(a). The career offender Guideline

defines “crime[s] of violence” in the following way:

a. The term “crime of violence” means any offense

under federal or state law, punishable by impris-

onment for a term exceeding one year, that—

(1) has an element the use, attempted use, or

threatened use of physical force against the

person of another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or [b] otherwise

2

(...continued)

active service pursuant to 7th Cir. R. 40(e). No judge requested

a rehearing en banc.

12 No. 12-1439

involves conduct that presents a serious po-

tential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). We must therefore determine whether

Brown’s prior conviction for “recklessly damag[ing] a

building by intentionally starting a fire or causing an

explosion,” 11 Del. C. § 801(a), qualifies as a crime of

violence under the terms of the career offender Guideline.

A. Arson in the Third Degree is Not a “Crime of Vio-

lence”

Under the plain language of the Guideline, Arson in

the Third Degree is a crime of violence if it satisfies

Clause 1 (the “elements clause”), Clause 2(a) (the “enu-

merated crimes clause”) or Clause 2(b) (the “residual

clause”).

(i) Arson in the Third Degree Does Not Satisfy the

“Elements Clause”

The Government concedes that Delaware’s third-

degree arson statute does not satisfy the elements

clause. Nothing on the face of the statute involves “the

use, attempted use, or threatened use of physical force

against the person of another.” § 4B1.2(a); see United

States v. Sonnenberg, 628 F.3d 361, 365 (7th Cir. 2010)

(elements clause focuses on “the statute on its face”).

No. 12-1439 13

(ii) Arson in the Third Degree Does Not Satisfy the

“Enumerated Crimes Clause”

The enumerated crimes in Clause 2(a) includes the

crime of “arson.” U.S.S.G. § 4B1.2(a)(2). Under Taylor v.

United States, 495 U.S. 575 (1990), however, the fact that

Delaware labels the relevant predicate offense as “Arson

[in the Third Degree]” is not dispositive as to whether

that crime constitutes arson within the meaning of

§ 4B1.2(a)(2). See United States v. Mathews, 453 F.3d 830,

833 n.7 (7th Cir. 2006) (observing that in Taylor, “[t]he

Court opted for a uniform or ‘generic’ definition” of

burglary and rejected the view that “burglary was

burglary [for purposes of the ACCA] whenever the

state had labeled it as such”). Taylor instructs that to

determine whether Delaware’s third-degree arson is

contemplated by the enumerated crime of “arson” in the

Guideline, we must compare Arson in the Third Degree

under Delaware law with the “modern generic view” of

the common law crime of arson. Id. at 589. If Arson in

the Third Degree is broader than generic arson—meaning

that it criminalizes conduct that generic arson does not—

then it does not qualify as arson within the meaning of

the career offender Guideline. See Mathews, 453 F.3d at

833 n.7; Taylor, 495 U.S. at 589-90 (concluding that, with

regard to burglary as a predicate offense, Congress “had

in mind a modern ‘generic’ view of burglary, roughly

corresponding to the definitions of burglary in a

majority of the States’ criminal codes,” “regardless

of technical definitions and labels under state law”).

In Begay, the Supreme Court noted that arson means

“causing a fire or explosion with ‘the purpose of,’ e.g.,

14 No. 12-1439

‘destroying a building . . . of another ’ or ‘damaging any

property . . . to collect insurance.’ ” 553 U.S. at 145 (quoting

Model Penal Code § 220.1(1) (1985)) (emphasis added,

ellipses in original).3 Consistent with that definition,

several circuits have understood generic arson as

requiring a mens rea of willfulness or maliciousness. See

United States v. Velez-Alderete, 569 F.3d 541, 544 (5th Cir.

2009); United States v. Whaley, 552 F.3d 904, 907 (8th Cir.

2009); United States v. Velasquez-Reyes, 427 F.3d 1227, 1230

(9th Cir. 2005). The Supreme Court has described the

mens rea of willfulness or maliciousness as requiring a

purpose to inflict injury. See Exxon Shipping Co. v. Baker,

554 U.S. 471, 494 (2008).

Accordingly, because the Delaware law punishes one

who “recklessly damages a building by intentionally

3

Begay’s definition of generic arson derives directly from

Model Penal Code § 220.1(1). Arson in the Third Degree

under Delaware law, by contrast, corresponds to a separate

Model Penal Code provision: § 220.1(2), “reckless burning or ex-

ploding,” which punishes one who “purposely starts a fire

or causes an explosion . . . and thereby recklessly . . . places a

building or occupied structure of another in danger of

damage or destruction.” This fact bolsters our conclusion

that Arson in the Third Degree is distinct from “generic” arson

as defined in Begay. Further, our analysis will not provide

a loophole for all Delaware arsonists to avoid application of

the career offender Guideline: Delaware has a provision

that squarely fits the “generic” definition of arson as defined

in Begay: Arson in the Second Degree, which punishes one

who “intentionally damages a building by starting a fire or

causing an explosion,” clearly qualifies. 11 Del. C. § 802(a).

No. 12-1439 15

starting a fire or causing an explosion,” 1 Del. C. § 801(a)

(emphasis added), a defendant need not have had

“the purpose of” destroying property, as specifically

required in Begay to constitute the generic crime of ar-

son. 553 U.S. at 145. For example, Delaware’s law is

broad enough to cover a defendant who lawfully lights

a cigarette or sets a bonfire on his own property and is

merely reckless as to whether the fire might spread and

damage an adjoining building. The generic crime of arson

as defined in Begay, by contrast, is not so broad.

The Government disagrees with this characterization

of generic arson. It argues that Begay did not purport to

be defining the elements of the contemporary crime of

arson, as Begay was “not even an arson case.” It accord-

ingly argues that Brown’s reliance on a “passing paren-

thetical statement” in Begay defining generic arson as re-

quiring an element of purposefulness is misplaced.

However, a closer reading of Begay reveals that the

Court’s statement characterizing generic arson as em-

bracing a purposefulness element has more significant

force. In Begay, the Court considered whether driving

under the influence (“DUI”) qualified as a “violent

felony” under the residual clause of the Armed Career

Criminal Act (“ACCA”)4 and determined that the

ACCA’s “listed examples—burglary, arson, extortion, or

crimes involving the use of explosives—illustrate the

kinds of crimes that fall within the statute’s scope.” 553

4

The ACCA’s residual clause is identical to that of the career

offender Guideline.

16 No. 12-1439

U.S. at 142. The Court proceeded to analyze the ele-

ments of “burglary,” “arson,” and “extortion,” and con-

cluded that each involved “purposeful, violent, and

aggressive conduct.” Id. at 144-45 (quotation marks omit-

ted). Based on its review of these enumerated offenses,

the Court concluded that the residual clause, too,

applied to crimes involving “purposeful, violent, and ag-

gressive conduct.” Id. We view the Court’s analysis

as therefore supporting our conclusion that generic

arson contemplates purposeful, rather than reckless,

conduct.

Further, the Government has not cited any precedent

contradicting the Supreme Court’s statement indicating

that the enumerated offenses require an element of pur-

posefulness, or any precedent supporting its alternate

suggestion that mere recklessness is the requisite mens

rea for generic arson. At most, it suggests that there is a

divergence of authority on the question. But the “categori-

cal” approach embraced by the Supreme Court in

Taylor requires that we adopt a single, nationwide def-

inition of generic arson and then evaluate whether a

particular state statute substantially corresponds to

that definition. See 495 U.S. at 592 (“We think that ‘bur-

glary’ in §924(e) must have some uniform definition

independent of the labels employed by the various

States’ criminal codes.”).

The Government argues that “[e]ven if the lack of

consensus regarding the precise mental state required

for contemporary arson was not fatal to Brown’s claim,

the fact that he was convicted under a statute pro-

scribing intentional conduct likely means that he was

No. 12-1439 17

convicted of generic arson.” However, the Supreme

Court rejected this line of argument in Begay with

respect to the crime of driving under the influence.

There, the Government argued that “the knowing nature

of the conduct that produces intoxication combined

with the inherent recklessness of the ensuing conduct

more than suffices to create an element of intent” for

purposes of ACCA’s residual clause. Id. at 145 (quotation

marks omitted). The Court disagreed. It recognized that

“a drunk driver may very well drink on purpose,” id.,

but nevertheless concluded that drunk driving was not

analogous to “violent and aggressive crimes committed

intentionally such as [generic] arson” and the other

enumerated offenses. Id. at 148. Likewise here, a

defendant may very well light a cigarette “on purpose,”

but the relevant mens rea inquiry surrounds the conse-

quences of that act—here, recklessly damaging a build-

ing. 11 Del. C. § 801(a) (emphasis added). The fact that

Arson in the Third Degree under Delaware law includes

a single element of intent, therefore, cannot be under-

stood to require a finding that third-degree arson sub-

stantially corresponds to the generic crime of arson.

We conclude that Arson in the Third Degree under Dela-

ware Law is not generic arson for the purposes of the

career offender Guideline and thus is not covered by

the enumerated offenses clause.

(iii) Arson in the Third Degree Does Not Satisfy

the “Residual Clause”

We must next consider whether Arson in the Third

Degree is covered by the residual clause of the career

18 No. 12-1439

offender enhancement, which applies to any crime that

“otherwise involves conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a). In Begay, the Supreme Court held that the

ACCA’s identical residual clause applies only to crimes

that involve “purposeful, violent, and aggressive con-

duct.” 553 U.S. at 144-45 (quotation marks omitted).

Because Delaware’s third-degree arson statute crim-

inalizes the act of “recklessly damaging a building,” 11

Del. C. § 801(a) (emphasis added), Brown argues that

it does not contemplate the sort of purposeful conduct

contemplated by the residual clause under Begay.

We agree.

The Government rejects Brown’s reading of the

Delaware statute, again emphasizing that the statute

criminalizes some intentional conduct. See id. (third-

degree arson punishes one who “recklessly damag[ing]

a building by intentionally starting a fire or causing an

explosion”) (emphasis added). It argues that statutes

proscribing any intentional conduct satisfy the residual

clause under Begay, and cases involving “pure” reckless-

ness are distinguishable from the present one.

However, the Delaware statute carries an equivalent

mens rea burden to the DUI crime at issue in Begay,

which did not qualify as sufficiently “purposeful” so as

to fall within the scope of the residual clause. We’ve

explained that “[i]n 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 regard to the behavior that

the statute made criminal (behavior that represented

No. 12-1439 19

the consequences of the intentional act of drinking), to

satisfy the statute.” United States v. Woods, 576 F.3d 400,

409 (7th Cir. 2009) (emphasis added). Applying the

Court’s logic here, the act of intentionally setting a

fire, followed by recklessness with respect to the possi-

bility that the fire will cause damage (“the consequences

of the intentional act”) likewise cannot constitute a

crime of violence under the residual clause. The Gov-

ernment’s argument that a statute contemplates “pur-

poseful” conduct under Begay so long as the statute

includes a mens rea of intent with regard to any act, even

if it includes a mens rea of recklessness with regard to

the consequences of that act, is unconvincing: We’ve

explained that “[e]very crime of recklessness neces-

sarily requires a purposeful, volitional act that sets

in motion the later outcome.” Id. at 411.

This conclusion is bolstered by our decision in

United States v. Woods, a case interpreting the career

offender Guideline. In Woods, we construed Begay to

mean that “the residual clause encompasses only pur-

poseful crimes; crimes with the mens rea of recklessness

do not fall within its scope.” 576 F.3d at 412-13. We ac-

cordingly concluded in Woods that involuntary man-

slaughter was not a “crime of violence” under Begay

because the mens rea required for the offense was reck-

lessness rather than intent. Id. at 410-13. By the same

logic, because Arson in the Third Degree under Dela-

ware law criminalizes “recklessly damag[ing] a building

by intentionally starting a fire or causing an explosion,”

11 Del. C. § 801(a) (emphasis added), third-degree

arson cannot serve as a career offender predicate.

20 No. 12-1439

The Government argues, however, that the continuing

validity of Woods is questionable after Sykes v. United

States, 131 S. Ct. 2267 (2011). In Sykes, the Supreme

Court determined that Indiana’s crime of vehicular

flight is a “violent felony” under the ACCA’s residual

clause. Id. at 2277. The Court explained that the

residual clause’s requirement that an offense “present[ ]

a serious potential risk of physical injury to another”

calls for an inquiry into risk, explaining that “[i]n

general, levels of risk divide crimes that qualify from

those that do not.” Id. at 2275. Because “[s]erious and

substantial risks are an inherent part of vehicle flight,” id.

at 2276, the Supreme Court determined that the

Indiana crime is covered by the residual clause.

Based on this analysis, the Government urges us to

reject the inquiry into mens rea emphasized in Begay

and Woods and instead embrace an assessment of risk

to determine whether third-degree arson satisfies the

residual clause. Because the arson offense at issue here

involves serious potential risk of injury to others in the

ordinary case, the Government continues, Delaware’s

Arson in the Third Degree should qualify under the

residual clause.

But Sykes can be reconciled with Begay and Woods. The

Indiana law addressed in Sykes “makes it a criminal

offense whenever the driver of a vehicle knowingly or

intentionally ‘flees from a law enforcement officer,’ ” id. at

2270 (quoting Ind. Code § 35-44-3-3 (2004) (emphasis

added)); the statute thus contemplates only purposeful

conduct. This fact was critical to the Court’s endorse-

No. 12-1439 21

ment of a risk inquiry for purposes of determining

whether the crime satisfied the residual clause. See id. at

2275. Sykes drew an explicit distinction between statutes

which criminalize “purposeful or deliberate conduct”

(such as vehicular flight) and statutes with less stringent

mens rea requirements, including recklessness, negligence,

and strict liability crimes (analogous to driving under

the influence, at issue in Begay). Id. at 2275. For cases

involving crimes with stringent mens rea requirements,

the Court indicated that an assessment of risk levels

provides a “manageable standard” for determining

the residual clause’s applicability; for cases involving

a “crime akin to strict liability, negligence and reckless-

ness crimes,” Begay’s “purposeful, violent, and aggressive

formulation” can help to “explain the result.” Id. at 2276.

Accordingly, we interpret Sykes as having recognized

that the purposefulness inquiry embraced in Begay

remains applicable to statutes with less stringent

mens rea requirements, including those with a mens rea

of recklessness.5 For the reasons already articulated,

5

Indeed, even if Sykes did require an evaluation of risk in

the present case (in lieu of the “purposeful, violent, and aggres-

sive” formulation), Delaware’s Arson in the Third Degree

still would not qualify as a predicate offense under the

residual clause. Sykes explained that “a crime involves the

requisite risk [to fall under the residual clause] when the

risk posed by [the crime in question] is comparable to that

posed by its closest analog among the enumerated offenses.” 131

S. Ct. at 2273 (quotation marks omitted). The closest analog

(continued...)

22 No. 12-1439

Delaware’s Arson in the Third Degree qualifies as such

a statute. Delaware’s Arson in the Third Degree law is

not covered by the career offender Guideline’s residual

clause. See Woods, 576 F.3d at 412-13 (“[T]he residual

clause encompasses only purposeful crimes; crimes

with the mens rea of recklessness do not fall within

its scope.”).

Brown has thus demonstrated that Delaware’s Arson

in the Third Degree does not satisfy the elements clause,

the enumerated offenses clause, or the residual clause,

meaning that it does not qualify as a crime of violence

for the purposes of the career offender Guideline. Never-

theless, in its brief, the Government claims that “Brown’s

burden required him to do more than merely show that

his arson conviction was not a crime of violence; rather,

he must clearly make this showing.” (Appellee’s Br. at

5

(...continued)

to Brown’s conviction among the enumerated offenses is

generic arson. But of course, Delaware’s Arson in the Third

Degree, requiring a mens rea of recklessness, is less risky

than generic arson, which requires the commission of an act

intending or knowing that it will cause damage. See Begay,

553 U.S. at 145; Cf. James v. United States, 550 U.S. 192, 203-04

(2007) (finding that the closest analog to “attempted burglary”

was the enumerated offense of “generic” burglary, and that

“attempted burglary” was a crime of violence under the

residual clause because “the risk posed by an attempted

burglary that can serve as the basis for an ACCA enhance-

ment may be even greater than that posed by a typical com-

pleted burglary.”).

No. 12-1439 23

30). It further suggests that Brown “bears the burden

of showing that the essential prerequisites for the extra-

ordinary relief he seeks have all been clearly recognized

by prior case law.” (Appellee’s Br. at 32-33). The Gov-

ernment apparently gleans this claim from the fed-

eral government’s general “interest in the finality of its

criminal judgments,” United States v. Frady, 456 U.S. 152,

166 (1982), as well as the restrictive approach to succes-

sive collateral relief embraced by Congress in the text

of the Antiterrorism and Effective Death Penalty Act of

1996. This argument has no textual basis in § 2241

or § 2255 (neither provision contains reference to a re-

quirement that a prisoner’s entitlement to relief be

“clearly recognized”), and the Government does not

explain how it is grounded in the test we articulated in

Davenport for obtaining habeas relief under § 2241.

At oral argument and subsequently in a letter to the

court, the Government modified its position, explaining

that Brown must show that “(a) the legal basis for his

claim is clear (b) as a result of an intervening precedent.”

From the Government’s point of view, “the narrow

dispute between the parties is simply whether Begay

affects the status of Mr. Brown’s prior conviction with

the requisite degree of clarity necessary to justify succes-

sive collateral relief.”

We may dispense with the purported narrow dispute

between the parties by finding that Begay provided a

“postconviction clarification in the law” that has

“rendered the sentencing court’s decision unlawful.”

Narvaez, 674 F.3d at 627. It is sufficient, for present pur-

poses, that “it is now clear that [Brown] . . . never should

24 No. 12-1439

have been classified as a career offender and never

should have been subjected to the enhanced punish-

ment reserved for such repetitive and violent offend-

ers.” Id. To the extent that the Government’s shifting

argument is grounded in the notion that habeas relief

should be difficult to obtain, we do not quarrel with

this proposition: “sentencing errors are generally not

cognizable on collateral review.” Id. But the stringent

requirements articulated in Narvaez and our other cases

are subject to a “special and very narrow exception”

where a “postconviction clarification in the law has

rendered the sentencing court’s decision unlawful.”

Id. Today we encounter one such rare case.

B. Prior to the Supreme Court’s Ruling in Begay,

Brown’s Argument was Foreclosed by Binding

Precedent

The Government argues that even if Brown was mis-

takenly sentenced as a career offender, he is not entitled

to pursue his claim because he has not established

that section 2255 was inadequate or ineffective to test

the legality of his detention. (Appellee’s Br. at 43). Specifi-

cally, the Government asserts that Brown could have

raised his claim earlier. As previously mentioned, in

Rios we determined that the prisoner had met the

second Davenport condition (requiring the prisoner to

show that he relies on a retroactive decision that he

could not have invoked in his first § 2255 motion)

because his challenge was based on Begay (a retroactive

Supreme Court decision), and his § 2255 petition was

No. 12-1439 25

denied prior to Begay. 696 F.3d at 640. Likewise here,

Brown’s § 2241 petition is based on Begay and the

Delaware District Court denied his § 2255 motion prior

to Begay.

In Werlinger, however, we employed a slightly

higher standard for proving that § 2255 was inadequate

or ineffective: We required the prisoner to show that his

claim was “foreclosed by binding precedent” at the time

of his direct appeal and § 2255 motion. Werlinger, 695

F.3d at 648. Brown argues that he can meet this

heightened standard and is therefore eligible for § 2241

relief.

To this end, Brown argues that binding Third Circuit

precedent prior to Begay foreclosed any contention that

his conviction for Arson in the Third degree was not a

“crime of violence” under the career offender Guide-

line. Brown points us to United States v. Parson, 955 F.2d

858 (3d Cir. 1992), a case in which the Third Circuit

held that a defendant’s prior conviction for first-degree

“reckless endangering” was a “crime of violence” under

the career offender Guideline. Id. at 860. The Third

Circuit observed that “crimes such as drunk driving . . .

present a serious risk of physical harm to a victim

and therefore qualify as predicate ‘crimes of violence’

for purpose of the career offender Guideline.” Id. at 874;

see also United States v. McQuilkin, 97 F.3d 723, 729 (3d

Cir. 1996) (reaffirming that “ ‘purely reckless’ crimes

continue to count as predicate offenses for purposes

of ‘career offender’ consideration”).

26 No. 12-1439

Following Begay, the Third Circuit has since recog-

nized that Parson is no longer good law:

In Parson, we held that a reckless endangering con-

viction was a crime of violence under §4B1.2(a) of

the federal sentencing guidelines. 955 F.2d at 860. In

2008, the Supreme Court decided Begay, which held

that a DUI conviction under New Mexico law did

not fall within the definition of a “violent offender”

under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. §924(e)(2)(B)(ii), since violent felonies

were limited to offenses which “typically involve

purposeful, violent, and aggressive conduct.” 553

U.S. at 144-45, 128 S. Ct. 1581 (citation and internal

quotation marks omitted). Post-Begay, we have held

that “a conviction for mere recklessness cannot con-

stitute a crime of violence” under the federal sen-

tencing guidelines. United States v. Lee, 612 F.3d

170, 195-97 (3d Cir. 2010).

Aguilar v. Att’y Gen. of United States, 663 F.3d 692, 698

n.12 (3d Cir. 2011). Taken together, this precedent sug-

gests that if Brown had made the argument he cur-

rently advances—that the “recklessness” mens rea in

the Delaware criminal statute rendered it ineligible

for treatment as a career-offender predicate—he

would clearly have lost under Parson. It therefore

follows that pre-Begay binding precedent foreclosed

Brown’s argument that Arson in the Third Degree is not

a “crime of violence,” as, its mens rea is mere recklessness.

The Government’s only response to this line of

argument is its familiar claim that Brown’s Delaware

No. 12-1439 27

offense is not a “recklessness” crime because it requires

the intentional act of lighting a fire. (Appellee’s Br. at 46-

47). But we have accepted Brown’s claim in the first

instance that Arson in the Third Degree is fairly charac-

terized as a crime requiring a mens rea of recklessness,

and the Government offers no counterargument to the

notion that Begay changed the law in the Third Circuit

for “recklessness” offenses. Put simply, the Government

does not claim that Brown’s “recklessness” argument,

currently advanced in this Court, would have had any

chance of prevailing in the Third Circuit at the time of

his conviction, nor does it dispute that Begay changed

Third Circuit law and overruled Parson. Because prior

to the Supreme Court’s ruling in Begay Third Circuit

precedent foreclosed the argument advanced today,

Brown has demonstrated that § 2255 would provide

an inadequate or ineffective remedy.

III. Conclusion

For the foregoing reasons, we R EVERSE the decision

below and R EMAND with instructions to reduce Brown’s

sentence to reflect our finding that he is not a career

offender within the meaning of § 4B1.1.

28 No. 12-1439

Statement of E ASTERBROOK, Chief Judge, concerning

the circulation under Circuit Rule 40(e). Justices of the

Supreme Court sometimes file statements explaining

why they have voted not to grant certiorari, even though

they doubt the soundness of the decision under review.

See, e.g., Calhoun v. United States, 133 S. Ct. 1136 (2013)

(statement of Sotomayor, J.). Likewise appellate judges

may explain why they have not voted to hear a case

en banc, even though they doubt the soundness of the

panel’s decision. See, e.g., Freeman United Coal Mining

Co. v. Director, OWCP, 999 F.2d 291 (7th Cir. 1993) (state-

ment of Easterbrook, J.), vacated, 512 U.S. 1231 (1994), in

light of Director, OWCP v. Greenwich Collieries, 512 U.S.

267 (1994). Here, too, I have doubts about the panel’s

decision, though I do not think that a hearing en banc

would help.

The panel holds that a federal prisoner may use 28

U.S.C. §2241 to contest the length of his sentence when

a later decision of the Supreme Court shows that

the judge’s calculation of a range under the Sentencing

Guidelines was erroneous. It reaches this conclusion

despite 28 U.S.C. §2255(e), which provides: “An applica-

tion 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 entertained if it appears that

the applicant has failed to apply 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.” Relying on In re Davenport, 147 F.3d

605 (7th Cir. 1998), the panel concludes that a §2255

No. 12-1439 29

motion is “ineffective” when the prisoner relies on a

non-constitutional decision rendered after the statute

of limitations in §2255(f) expired. And relying on Narvaez

v. United States, 674 F.3d 621 (7th Cir. 2011), the panel

concludes that collateral relief must be available for

errors that affect the length of sentence, though not

the validity of the conviction—at least when the sentence

was imposed before United States v. Booker, 543 U.S.

220 (2005), held that the Sentencing Guidelines are not

mandatory. See Hawkins v. United States, 706 F.3d 820

(7th Cir. 2013).

No other circuit follows either Davenport or Narvaez.

The latter decision has been rejected explicitly by Sun Bear

v. United States, 644 F.3d 700, 705 n.8 (8th Cir. 2011) (en

banc), and implicitly by McKay v. United States, 657 F.3d

1190 (11th Cir. 2011). The former is incompatible with

the law of many. See, e.g., Trenkler v. United States, 536

F.3d 85, 99 (1st Cir. 2008); Poindexter v. Nash, 333 F.3d 372,

382 (2d Cir. 2003); Okereke v. United States, 307 F.3d 117 (3d

Cir. 2002); San-Miguel v. Dove, 291 F.3d 257, 261 n.2 (4th

Cir. 2002); Wooten v. Cauley, 677 F.3d 303, 307–08 (6th Cir.

2012); Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012).

And the holding that the panel produces by combining

Davenport with Narvaez puts us in conflict with at least

two circuits, as the panel acknowledges, with no other

circuit on our side. See Gilbert v. United States, 640 F.3d

1293 (11th Cir. 2011) (en banc); In re Bradford, 660 F.3d

226 (5th Cir. 2011). Gilbert observed: “Every circuit to

decide this issue has reached the same conclusion we

do: the savings clause of §2255(e) does not permit a

prisoner to bring in a §2241 petition a guidelines miscal-

30 No. 12-1439

culation claim that is barred from being presented in

a §2255 motion” (640 F.3d at 1312).

Davenport held that §2255 is “ineffective” if the

argument was bound to fail at the time it should have

been presented. This is an abnormal use of “ineffective.”

Think of “ineffective assistance of counsel.” We do not

call a lawyer’s work “ineffective” just because the de-

fendant’s arguments have been considered and rejected

by the Supreme Court or the local circuit. A lawyer’s

work satisfies the “ineffective assistance” doctrine if

counsel presents the best available defense, even if that

defense is doomed. So too with §2255. A motion under

§2255 could reasonably be thought “inadequate or inef-

fective to test the legality of [the prisoner’s] detention” if

a class of argument were categorically excluded, but

when an argument is permissible but fails on the merits

there is no problem with the adequacy of §2255.

Brown could have presented at sentencing, on appeal,

and via motion under §2255 his current argument that

he should not have been classified as a career offender

under U.S.S.G. §4B1.1. Actually he did contend under

§2255 that his lawyer’s failure to object at sentencing to

the use of his prior conviction for arson amounted

to ineffective assistance of counsel. That contention

was rejected, not because §2255 disallowed it, but on the

merits, because it was based on a misunderstanding of

how suspended sentences work in Delaware. 2003 U.S.

Dist. L EXIS 1928 *15 (D. Del. Feb. 3, 2003). Brown did not

present at sentencing, on appeal, or through §2255 the

argument that has succeeded today: that arson in the

No. 12-1439 31

third degree under Delaware law is not “violent” for

federal sentencing purposes. Our panel thinks that

Begay v. United States, 553 U.S. 137 (2008), supports

Brown, and that may be so, but Begay did not hold

that either a direct appeal or a motion under §2255

would have been “inadequate or ineffective” to present

the argument that our panel now accepts.

Davenport believed that “sure to fail on the merits”

and “ineligible for consideration on the merits” come to

the same thing as a practical matter, so that §2255 is

unavailable or ineffective in either situation. Then §2241

affords relief if the argument becomes stronger in later

years. Yet “wrong on the merits” and “the court won’t

listen” differ. The petitioner in Bousley v. United States,

523 U.S. 614 (1998), contended that his omission of a

legal argument should be excused because, if it had been

raised, the court was sure to reject it. Five years after

Bousley was sentenced, the Supreme Court held in

Bailey v. United States, 516 U.S. 137 (1995), that the

word “use” in 18 U.S.C. §924(c)(1) means something

different from what every court of appeals had under-

stood it to mean. Bousley contended that he was entitled

to the benefit of Bailey. He was met with the reply that

his failure to present the line of argument that ulti-

mately prevailed in Bailey was a procedural default; to

this he replied that a losing argument should be treated

the same as an argument that can’t be made at all. The

Supreme Court rejected that contention and held that

normal rules of forfeiture and default apply, even if

circuit law is conclusive against the accused. 523 U.S.

at 621–24.

32 No. 12-1439

To the contention that an argument’s legal futility is

the same as a court’s inability to entertain the argument,

the Supreme Court was dismissive; it observed that

“futility cannot constitute cause [for an argument’s omis-

sion] if it simply means that a claim was ‘unacceptable

to the particular court at that particular time.’ ” 523 U.S.

at 623, quoting from Engel v. Isaac, 456 U.S. 107, 130 n.35

(1982). The panel in Davenport stated: “It would just

clog the judicial pipes to 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.” 147 F.3d at 610.

Begay and Engel show that the Justices have a different

view. Arguments that contradict circuit law can serve a

purpose: If Brown had presented his argument earlier,

Begay v. United States might have come in 2000, as Brown

v. United States. The reason Begay came out as and when

it did was that Begay made his argument at sentencing

and pursued it all the way to the Supreme Court. Brown

could have done the same but didn’t. Bousley shows

that someone who knuckles under to adverse authority

at the appellate level cannot later contend that an ap-

parently losing position is the same as a position that

the judiciary refuses to entertain. The perspective of

the Supreme Court, articulated in Begay and Engel,

prevails over the perspective of the panel in Davenport;

and at all events one circuit’s ’druthers about optimal

litigation practice do not render §2255 “inadequate or

ineffective” to present a contention.

Begay has a proviso: relief under §2255 can be

available, even if a contention has been forfeited, when

No. 12-1439 33

a later decision shows that the prisoner is actually

innocent of a federal crime. See also Davis v. United

States, 417 U.S. 333 (1974). Since §2255 provides relief

to prisoners actually innocent of any federal crime,

§2254(e) precludes resort to §2241. Anyway, Brown

does not claim to be innocent of distributing cocaine

or of possessing a firearm despite a prior felony convic-

tion, the crimes of which he was convicted. Bousley

and Davis hold that relief is available to a person stuck

in prison for an act that the law does not make crimi-

nal. Brown is not remotely in that fix. He contends

instead that his sentence might have been shorter had

the district judge understood that his earlier arson con-

viction is not a “crime of violence” for the purpose

of U.S.S.G. §4B1.1. The Supreme Court has never held

that a person can be “innocent” of a longer sentence—

and in Hope v. United States, 108 F.3d 119 (7th Cir. 1997),

we concluded that §2255(h)(1), which allows a second

or successive collateral attack if the evidence did not

permit a trier of fact to find the defendant guilty, does

not authorize a contention that a prisoner is “innocent”

of a sentence’s particular length. One can be innocent of

a crime, Hope observed, but not of a sentence.

The prisoner in Schriro v. Summerlin, 542 U.S. 348 (2004),

contended that Apprendi v. New Jersey, 530 U.S. 466

(2000), should be applied retroactively because it affects

the length of sentences. The Supreme Court rejected

that contention, distinguishing decisions about the

legality of primary conduct (Davis and Bousley) from

decisions about the length of sentences. Other than in

capital litigation, the Justices have never held that a

34 No. 12-1439

person can be innocent of a sentence. So the actual-inno-

cence exception to the rules of default does not

help Brown.

On this subject Davenport supports the United States

rather than Brown. Davenport had two petitioners. One

(Davenport) contended that his sentence was too long,

the other (Nichols) that he had not committed a crime.

The panel ruled in favor of Nichols and against

Davenport, who was outside the actual-innocence rule.

147 F.3d at 609–10. Davenport protested an enhance-

ment as an armed career criminal, and he lost; Brown,

whose situation is functionally equivalent to Daven-

port’s, nonetheless prevails. The reason is Narvaez, which

today’s panel implicitly treats as overruling the part

of Davenport that concerned Davenport himself. I grant

that Narvaez deemed an unduly long sentence equiva-

lent to conviction for a non-crime, but what I have said

so far shows why that is untenable.

Section 2255 can be used to reduce a sentence whose

length stems from a legal error. See Glover v. United

States, 531 U.S. 198 (2001). This shows yet again why

§2255 is neither inadequate nor ineffective to deal

with problems such as Brown’s—when the defendant

presents his contentions properly. The difficulty

with Narvaez is that it overlooks the defendant’s forfei-

ture, just as today’s panel overlooks Brown’s.† When a

†

Narvaez also permits an appeal from an order denying relief

under §2255 even when the district court’s error is entirely

(continued...)

No. 12-1439 35

defendant omits arguments at trial or sentencing, and

therefore must rely on the “actual innocence” doctrine

to excuse the default, it matters whether the problem

concerns guilt or the length of the sentence. I could see

extending the actual-innocence doctrine of Davis and

Bousley to sentences that exceed the statutory maxi-

mum, but both Narvaez and Brown received sentences

less than the cap. The disputes in both cases concern

how judges chose among authorized sentences.

Davenport and Narvaez in conjunction vitiate two amend-

ments to §2255 made by the Antiterrorism and Effective

Death Penalty Act of 1996. Section 2255(f) adds a one-

year statute of limitations and specifies four kinds of

events that open new one-year periods. Section 2255(h)

adds a limit on multiple §2255 motions, with two excep-

tions. Brown filed and lost a §2255 motion several

years ago, so he can file another only if §2255(h) allows.

Section 2255(h)(2) says that a successive motion is per-

missible when the prisoner relies on “a new rule of con-

stitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavail-

†

(...continued)

statutory, despite 28 U.S.C. §2253, which limits certificates of

appealability to substantial constitutional issues. See Slack v.

McDaniel, 529 U.S. 473, 483–85 (2000). An error of law differs

from a violation of the Constitution. See Wilson v. Corcoran,

131 S. Ct. 13 (2010); Bradshaw v. Richey, 546 U.S. 74 (2005);

Gilmore v. Taylor, 508 U.S. 333 (1993); Estelle v. McGuire, 502

U.S. 62 (1991). But that problem does not affect this case, so

I do not pursue the subject.

36 No. 12-1439

able.” Brown cannot use this exception, because Begay

is not a constitutional decision. See also Gray-Bey v.

United States, 209 F.3d 986 (7th Cir. 2000) (same conclu-

sion for Bailey). Nor has the Supreme Court declared

Begay to be retroactive.

Even if Begay were constitutional, and this were

Brown’s first collateral attack, he would lose because

he took too long to file his petition. Section 2255(f)(3)

gives a prisoner one additional year from “the date on

which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized

by the Supreme Court and made retroactively applicable

to cases on collateral review”. For this purpose, a court

of appeals as well as the Supreme Court may declare

a decision retroactive, see Fischer v. United States, 285

F.3d 596 (7th Cir. 2002); Ashley v. United States, 266 F.3d

671 (7th Cir. 2001), and I assume for the sake of argument

that Begay qualifies. But Begay was decided on April 16,

2008, and Brown did not launch his current collateral

attack until 2012.

Brown’s delay, and his prior resort to §2255, independ-

ently block that statute’s use to obtain collateral review.

He could have waited until the Supreme Court decided

Begay and then filed under §2255 within the next year.

Instead he squandered his opportunity under §2255 by

filing while it had little chance of success. Brown’s litiga-

tion strategy may have been “inadequate or ineffective”;

there’s no such flaw in §2255.

The AEDPA did not amend §2241 and does not limit

its scope. See Felker v. Turpin, 518 U.S. 651 (1996). But the

No. 12-1439 37

reason Brown cannot use §2241 lies not in that statute

but in §2255(e). What sense can it make to hold that the

1996 amendments to §2255 are self-defeating? Yet, by

combining Davenport and Narvaez, the panel concludes

that §2255(f) and §2255(h) make §2255 as a whole “inade-

quate or ineffective” because the AEDPA sets limits.

Laws should not be interpreted as self-cancelling.

The AEDPA’s amendments are designed to vindicate

society’s interest in the finality of criminal judgments.

See Harrington v. Richter, 131 S. Ct. 770 (2011). The

panel’s decision undermines finality by authorizing

successive, belated, collateral attacks. Brown was con-

victed in 1996; the conviction and sentence were

affirmed, 173 F.3d 422 (3d Cir. 1998); certiorari was

denied, see 526 U.S. 1153 (1999); he filed and lost a col-

lateral attack under §2255, 2003 U.S. Dist. L EXIS 1928 (D.

Del. Feb. 5, 2003); our opinion requires a new sentencing

in 2013 to apply a 2008 decision. The panel’s decision

also undermines the AEDPA’s provision that constitu-

tional claims can support successive collateral attacks

while statutory claims cannot; under today’s opinion, by

contrast, it is easier to get belated, successive review of

a statutory (or Guidelines) claim than of a constitutional

claim.

Finally, the panel’s decision undermines one of §2255’s

principal objectives: directing post-judgment litigation

to the sentencing court. Litigation under §2241 occurs

in the district with jurisdiction over the prisoner’s current

custodian. See Rumsfeld v. Padilla, 542 U.S. 426 (2004).

Brown was sentenced in Delaware, and the third circuit

38 No. 12-1439

may well disagree with our conclusion about how Dela-

ware’s crime of arson in the third degree should be classi-

fied for the purpose of U.S.S.G. §4B1.1. Brown litigated

and lost in the third circuit; he gets to try the seventh

circuit because he is in a federal prison in Indiana; and if

he had lost here, and later been moved to Colorado

or Texas, he could have tried again. It is not wise to

authorize sequential litigation in multiple circuits,

when the AEDPA embodies a legislative decision that

this sort of collateral litigation should not proceed in

any court.

Notwithstanding what I have said, Davenport and

Narvaez enjoy support in this circuit. I appear to be the

only judge who doubts their soundness. It would

therefore be pointless to sit en banc. Resolution of the

conflict belongs to Congress or the Supreme Court. That

is why I did not call for a hearing en banc following

the panel’s circulation under Circuit Rule 40(e).

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