911 F.3d 861
7th Cir.2018Background
- Joshua Shepherd was convicted in Western District of Kentucky (2008) for possession with intent to distribute marijuana, being a felon in possession of a firearm, and forfeiture; sentencing used the ACCA to impose a 15-year mandatory minimum based on three Kentucky second-degree burglary convictions.
- His plea agreement contained an express waiver of the right to collaterally attack his conviction or sentence under 28 U.S.C. § 2255.
- The Sixth Circuit affirmed on direct appeal; Shepherd’s initial § 2255 motion and subsequent successive § 2255 requests were denied by the district court and Sixth Circuit (the Sixth Circuit reasoned the burglaries were "generic" and therefore ACCA predicates).
- Shepherd filed a § 2241 petition in the Southern District of Indiana arguing Mathis v. United States rendered his Kentucky burglary predicates overbroad and invalid for ACCA purposes; the district court dismissed under 28 U.S.C. § 2244(a).
- The Seventh Circuit reviewed de novo, declined to reach procedural threshold issues (e.g., waiver, availability of § 2241), and resolved the petition on the merits by adopting the Sixth Circuit’s holding in United States v. Malone that Kentucky second-degree burglary qualifies as generic burglary for ACCA purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2241 is available to challenge ACCA enhancement given prior § 2255 litigation | Shepherd: § 2255 is inadequate/ineffective under § 2255(e) so § 2241 may be used to raise Mathis claim | Government: Shepherd’s remedies under § 2255 are controlling; procedural bars and waiver preclude § 2241 relief | Court avoided procedural dispute and resolved merits — denied § 2241 relief |
| Whether Kentucky second-degree burglary is "generic burglary" under ACCA | Shepherd: Mathis shows Kentucky statute is overbroad because of state definitions, so convictions shouldn’t be ACCA predicates | Government: Kentucky second-degree burglary matches generic burglary (limited to dwellings/buildings) | Held: Kentucky second-degree burglary is generic burglary (adopting Malone) |
| Whether the residual clause or enumerated clause controlled Shepherd’s ACCA enhancement | Shepherd: Johnson/Mathis may eliminate predicate depending on clause used | Government: District court and Sixth Circuit found predicates under the enumerated clause, not the residual clause | Held: Predicates were enumerated burglaries; Johnson’s residual-clause invalidation does not help Shepherd |
| Whether the plea waiver bars collateral attack on sentence under § 2255/§ 2241 | Shepherd: waiver may not bar a claim based on intervening Supreme Court decisions affecting predicate status | Government: plea waiver and prior denials foreclose collateral attack | Held: Court sidestepped waiver question and denied relief on merits (Malone control) |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (categorical approach and mismatch inquiry for predicate offenses)
- Taylor v. United States, 495 U.S. 575 (definition of "generic burglary")
- Johnson v. United States, 135 S. Ct. 2551 (residual-clause vagueness)
- Mathis v. United States, 136 S. Ct. 2243 (statutory elements vs. means; assessing overbreadth of state statutes)
- United States v. Malone, 889 F.3d 310 (6th Cir. holding that Kentucky second-degree burglary is generic burglary for ACCA purposes)