911 F.3d 861
7th Cir.2018Background
- In 2008 Shepherd was stopped in Kentucky; police found marijuana and a firearm. He pleaded guilty to possession with intent to distribute, felon-in-possession, and related forfeiture counts.
- At sentencing the district court applied the Armed Career Criminal Act (ACCA) enhancement based on three prior Kentucky second-degree burglary convictions, producing a 15-year mandatory minimum sentence.
- Shepherd’s plea agreement included a broad waiver of the right to collateral attack under 28 U.S.C. § 2255; the Sixth Circuit affirmed on direct appeal and denied § 2255 relief and later successive § 2255 motions.
- After Mathis v. United States, Shepherd sought relief under 28 U.S.C. § 2241 in the Southern District of Indiana (where he is imprisoned), invoking the § 2255(e) “inadequate or ineffective” exception and arguing Kentucky second-degree burglary is overbroad and not a generic burglary predicate.
- The district court dismissed the § 2241 petition; the Seventh Circuit affirmed, adopting the Sixth Circuit’s ruling in United States v. Malone that Kentucky second-degree burglary matches generic burglary for ACCA purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shepherd may use § 2241 via § 2255(e)’s inadequate-or-ineffective exception to challenge ACCA enhancement | Shepherd: Mathis renders Kentucky second-degree burglary overbroad, so convictions are not ACCA predicates; § 2255 remedies are inadequate, permitting § 2241 relief | Government: § 2255 is the correct vehicle; Shepherd’s claims have been litigated and denied; even on merits Kentucky burglary is a generic burglary | Denied — court resolved merits and held Shepherd not entitled to § 2241 relief because his predicates qualify under ACCA |
| Whether Kentucky second-degree burglary is a “generic burglary” under ACCA | Shepherd: State statute sweeps more broadly (citing broader state definitions) and thus does not match generic burglary | Government: The statute’s use of “dwelling” restricts it to ordinary buildings; it does not incorporate the broader § 511.010 definition that includes vehicles, watercraft, aircraft | Held: Kentucky second-degree burglary is generic burglary; Malone (6th Cir.) persuasive and controlling for merits |
| Impact of plea collateral-attack waiver on collateral review | Shepherd: sought to proceed regardless via § 2241 exception after § 2255 relief was denied | Government: waiver and prior denials foreclose relief; procedural hurdles apply | Court avoided resolving waiver issue, deciding case on merits instead |
| Whether this court should follow Seventh- or Sixth-Circuit precedent (or national rule) on the ACCA burglary question | Shepherd: relied on Mathis to attack predicate | Government: Malone (Sixth Circuit) holds burglary qualifies; that reasoning persuasive | Court: Adopted Malone’s statutory interpretation and affirmed denial of § 2241 petition |
Key Cases Cited
- Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc) (divided guidance on § 2255(e) inadequate-or-ineffective exception)
- In re Davenport, 147 F.3d 605 (7th Cir. 1998) (framework for when § 2241 may be available to federal prisoners)
- Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (discussion of circuit division on § 2255(e) scope)
- Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc) (reviewing split authority on § 2255(e))
- Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) (principles for resolving inter-circuit jurisdictional disagreement)
- Hill v. Werlinger, 695 F.3d 644 (7th Cir. 2012) (standard of review for § 2241 denials)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach for identifying generic burglary)
- Taylor v. United States, 495 U.S. 575 (1990) (definition of generic burglary elements)
- United States v. Malone, 889 F.3d 310 (6th Cir. 2018) (Kentucky second-degree burglary constitutes generic burglary for ACCA purposes)