DEANDRE J. BEASON, Petitioner-Appellant, v. MATTHEW MARSKE, Respondent-Appellee.
No. 18-3575
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 14, 2019 — DECIDED JUNE 24, 2019
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17-cv-406 — William M. Conley, Judge.
SCUDDER, Circuit Judge. The Armed Career Criminal Act, housed in
But this observation only gets us so far, as this case turns instead on whether Beason has available a procedural means to secure resentencing. He did not prevail on challenging his conviction and sentence on direct appeal. Nor did he succeed in his pursuit of post-conviction relief under
We conclude that at least one of Beason‘s grounds for relief—pertaining to two of his three prior convictions—was foreclosed to him at the time of his
I
Following his 2009 guilty plea to being a felon in possession of a firearm in violation of
The sentencing court determined that Beason‘s juvenile conviction for armed robbery was a qualifying violent felony. Under the Armed Career Criminal Act, a juvenile adjudication counts as a “violent felony” if the same offense would be a violent felony if committed by an adult and the offense involves “the use or carrying of a firearm, knife, or destructive device.”
On direct appeal in this court, Beason‘s counsel submitted an Anders brief, explaining that he could not identify any non-frivolous issues to pursue on appeal. His counsel considered—but rejected—any possible attack on the sentencing court‘s conclusion that Beason‘s three prior convictions qualified him as an armed career criminal.
We agreed and dismissed Beason‘s appeal. See United States v. Beason, 493 F. App‘x 747, 750 (7th Cir. 2012). First, as to Beason‘s drug offenses, we rejected the line of argument that Beason had advanced at sentencing that one of his drug convictions—the less serious of the two—did not qualify as a “serious drug offense” because it carried a maximum penalty of ten years as opposed to the “ten years or more” required by the Armed Career Criminal Act. Id. at 748 (quoting
We then considered whether Beason‘s juvenile adjudication for armed robbery qualified as a “violent felony” within the meaning of
Having no success on direct appeal, Beason then pursued post-conviction relief. In 2013 he invoked
Four years later, and having witnessed certain intervening changes in the law, Beason again pursued post-conviction relief, this time by filing a petition under
In the district court and now on appeal, everyone agrees that Beason is right on the merits. Current caselaw makes clear that neither Beason‘s drug offenses nor his juvenile adjudication for armed robbery
But that is not the end of the matter. The question is whether Beason, having already availed himself of a collateral attack under
II
As a general matter,
In Davenport‘s wake, we have developed a three-part test implementing Davenport‘s holding. See Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016). A petitioner who seeks to satisfy
The government agrees with Beason that he meets the first and third requirements. Notably, the government conceded below—and does not argue to the contrary on appeal—that a circuit court statutory interpretation case like Spencer could satisfy the first prong of the savings clause test. This position finds some support in our caselaw. See Webster, 784 F.3d at 1136 (noting the differing emphases in our caselaw interpreting Davenport and concluding that “[a]ll of these decisions hold, nevertheless, that there must be some kind of structural problem with section 2255 before section 2241 becomes available“); Morales v. Bezy, 499 F.3d 668, 672–73 (7th Cir. 2007) (indicating that circuit precedent could provide a basis for relief under
We therefore proceed to the only requirement of the savings clause test that is disputed on appeal—whether Beason was foreclosed in his prior
A
Beason first argues that neither of his two prior drug convictions qualify as a “serious drug offense” in light of our decision in Spencer. Those convictions were Class F and G felonies under Wisconsin law and carried maximum sentences of 12.5 years (Class F) and ten years (Class G). See
We addressed this precise question in Spencer, another Armed Career Criminal Act case. See 739 F.3d at 1028. There we analyzed the bifurcated nature of felony sentences under Wisconsin law and held that only the term of initial confinement—and not the term of extended supervision—counted towards the statute‘s threshold of ten-years’ imprisonment for an offense to qualify as a “serious drug offense.” See id. at 1032. A Class F felony committed in Wisconsin in 2000 or later, which carries a maximum term of initial confinement of seven years and six months, therefore did not qualify as a “serious drug offense.” See id.
Beason‘s
The parties agree on the first point: applying Spencer, Beason‘s prior drug convictions under Wisconsin law do not meet the Armed Career Criminal Act‘s express ten-year threshold required for “serious drug offenses.” We, too, agree, as even Beason‘s more-serious drug conviction (the Class F felony) carries a maximum term of initial confinement of seven years and six months, well below the ten-year threshold.
The harder question, though, is whether it “would have been futile” for Beason to raise this claim in his original
In confronting the same question, the district court concluded that the law was not squarely against Beason on this point at the time of his
We see the law the other way, in no small part because of our rejection of the argument in Beason‘s own case. That rejection came in Beason‘s 2012 direct appeal. There we considered whether Beason could challenge the use of his two Wisconsin drug convictions as qualifying offenses under the Armed Career Criminal Act on the basis that the term of imprisonment under Wisconsin law was not long enough. Because the maximum penalty faced by Beason for even the less-serious felony was ten years, we rejected the argument and indeed deemed it “frivolous.” To be sure, the argument we considered on direct appeal was a bit different than the one Beason raises here: we concentrated on the total maximum penalty Beason faced and did not address the bifurcated nature of a sentence imposed for a Wisconsin felony. But we nonetheless saw no merit in a contention that Beason‘s drug convictions failed to carry long enough maximum sentences to qualify as serious drug offenses under the Armed Career Criminal Act.
In these circumstances, our conclusion—relating directly as it did to the length of the sentence for a Wisconsin felony—had a clear consequence. Under the law of the case doctrine, Beason was prohibited from “relitigat[ing] in a collateral proceeding an issue that was decided on his direct appeal.” White v. United States, 371 F.3d 900, 902 (7th Cir. 2004). As a practical and legal matter, then, Beason needed a superseding development—like Spencer—to be able to advance his argument that his two drug convictions carried insufficiently long sentences to count as qualifying offenses under the Armed Career Criminal Act.
B
The government appears to recognize that the argument was foreclosed to Beason at the time he filed his
Answering the government‘s objection requires remembering how we got here. Recall that we decided Spencer in 2014 after Beason‘s
This timeline leads the government to argue that Beason should have reacted to our deciding Spencer when we did by seeking to amend his then-pending
We cannot agree. We decided Spencer at a time
In Felix, the Supreme Court emphasized that an amendment does not relate back merely because it “relate[s] to the same trial, conviction, or sentence as a timely filed claim.” Id. at 662. There the state habeas petitioner‘s original petition asserted a Sixth Amendment claim based on the admission of videotaped testimony at his trial, while his amended petition—filed after the one-year limitations period had expired—asserted a Fifth Amendment claim based on the admission of his pretrial statements to the police. Id. at 650–52. The Court recognized that both claims related to errors at the petitioner‘s trial, and more specifically involved “the admission of out-of-court statements during the prosecutor‘s case in chief,” but nevertheless concluded that the later-asserted claim did not relate back to the first claim. Id. at 650. Because the events underlying the later-added claim were separate in both “time and type” from the originally raised events, the original and newly asserted claims lacked a “common core of operative facts.” Id. at 657, 664.
The Supreme Court‘s teachings in Felix guide our assessment of Beason‘s claims here. What Beason‘s two claims have in common is that they both assert that the sentencing court committed legal error in sentencing him to a mandatory 15-year term of imprisonment as an armed career criminal. But the similarities end there. The claim Beason presented in his
All of this leads us to agree with Beason that the claim he asserts now regarding his prior drug offenses and the claim asserted in his
C
In these circumstances, then, we conclude that Beason was foreclosed from arguing that his two Wisconsin drug convictions did not count as qualifying offenses at the time of his
We can stop there, as this conclusion alone entitles Beason to resentencing. Section 2241 authorizes relief from “fundamental sentencing defect[s],” like erroneously sentencing a defendant as an armed career criminal. See Light v. Caraway, 761 F.3d 809, 813 (7th Cir. 2014) (quoting Brown v. Caraway, 719 F.3d 583, 587 (7th Cir. 2013)). Without the two Wisconsin drug convictions, Beason no longer has the three qualifying offenses necessary to be considered an armed career criminal under the Act. We need not go further and decide whether
Accordingly, we REVERSE the district court‘s judgment and REMAND with instructions to grant the petition to authorize resentencing.