MICHAEL GERALD GAMBOA v. CHARLES DANIELS, Warden
No. 20-1093
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 30, 2021 — DECIDED FEBRUARY 14, 2022
Before KANNE, WOOD, and HAMILTON, Circuit Judges.
Appeal from the United States District Court for the Central District of Illinois. No. 17-cv-1346 — James E. Shadid, Judge.
KANNE,
I. BACKGROUND
A. Gamboa‘s Sentencing and Direct Appeal
In 2003, a jury in the District of North Dakota found Gamboa guilty on all counts of a seven-count indictment for offenses involving firearms, narcotics possession, and conspiracy to possess with the intent to distribute methamphetamine. Relevant here are Counts 1 and 2: conspiracy to possess with intent to distribute methamphetamine and aiding and abetting in violation of
Before trial, the government filed its notice of prior convictions under
At sentencing, Gamboa argued that his prior state offenses should not count as separate predicate felony convictions. However, the “court made specific findings that the North Dakota conviction for the delivery of marijuana in Grand Forks County and the drug conspiracy conviction in Polk County, Minnesota, were both separate predicate felony convictions for the purpose of enhancing the sentences on Counts One and Two.” United States v. Gamboa, 439 F.3d 796, 813 (8th Cir. 2006). The
On direct appeal, the Eighth Circuit affirmed Gamboa‘s conviction and sentence on Counts 1 and 2. The Supreme Court later denied Gamboa‘s petition for a writ of certiorari. Gamboa v. United States, 549 U.S. 1042 (2006).
B. Gamboa‘s § 2255 Motions and Previous § 2241 Petitions
On November 13, 2007, Gamboa filed a motion to vacate, set aside, or correct his sentence under
Gamboa has had a lengthy post-conviction history. See, e.g., Gamboa v. United States, No. 13-2674 (8th Cir. Oct. 20, 2013) (affirming dismissal of successive
C. Gamboa‘s New § 2241 Petition
In 2016, the Supreme Court decided Mathis, which narrowed the range of state statutes that qualify as violent-felony predicates under the Armed Career Criminal Act. After Mathis was decided, Gamboa again pursued post-conviction relief under
Relying on Mathis, Gamboa argued that the state drug statutes used to enhance his sentence are overbroad and, therefore, do not qualify as predicate felony drug offenses within the meaning of
Gamboa responded by contending that his argument had indeed been foreclosed prior to Mathis because Eighth Circuit precedent interpreting Taylor — United States v. Payton, 918 F.2d 54 (8th Cir. 1990), and United States v. Cornelius, 931 F.2d 490, 494 (8th Cir. 1991) — permitted all alternatively phrased overbroad statutes to be treated as per se divisible. The district court denied Gamboa relief under
Gamboa now appeals.
II. ANALYSIS
A. Appellate Jurisdiction
We start with the preliminary issue we asked the parties to address. On February 7, 2020, we authorized Gamboa‘s transfer to a federal facility in Texas. We asked the parties to address the effect on this appeal, if any, of his transfer to the Texas facility. Both parties agree that we retain jurisdiction over this appeal despite Gamboa‘s transfer to a facility in another jurisdiction. So do we.
“Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”
We retain jurisdiction to hear Gamboa‘s appeal. Gamboa filed his petition in the Central District of Illinois while incarcerated in that district, and he was still located there when the district court entered judgment on July 31, 2019. Gamboa‘s proper filing of his
B. Gamboa‘s § 2241 Petition
With jurisdiction established, we can now address Gamboa‘s appeal. Gamboa appeals from the district court‘s denial of his petition for habeas corpus relief under
1. Background on the Categorical Approach
Section 841 requires an increase in the mandatory minimum sentence for any defendant convicted under the statute “after a prior conviction for a serious drug felony or serious violent felony has become final.”
We apply the Taylor categorical approach to determine whether a prior state conviction is a “felony drug offense” under federal law. See United States v. Elder, 900 F.3d 491, 497-501 (7th Cir. 2018). “Under the categorical approach, courts look solely to whether the elements of the crime of conviction match the elements of the federal recidivism statute.” United States v. Ruth, 966 F.3d 642, 646 (7th Cir. 2020) (citing Elder, 900 F.3d at 501). “If, and only if, the elements of the state law mirror or are narrower than the federal statute can the prior conviction qualify as a predicate felony drug offense.” Id. (quoting United States v. De La Torre, 940 F.3d 938, 948 (7th Cir. 2019)); see also Taylor, 495 U.S. at 602.
In Shular v. United States, 140 S. Ct. 779, 783 (2020), the Supreme Court clarified that there are two categorical methodologies depending on the statute at issue. We explained the two methodologies in Ruth:
In the first categorical methodology, some statutes require “the court to come up with a ‘generic’ version of a crime — that is, the elements of ‘the offense as commonly understood.‘” Id. (quoting Mathis v. United States, 136 S. Ct. 2243, 2247 (2016)). We will refer to this first method as the generic-offense method. The archetypal example is Taylor itself, which confronted the Armed Career Criminal Act‘s “unadorned reference to ‘burglary‘” and required the Court to “identif[y] the elements of ‘generic burglary’ based on the ‘sense in which the term is now used in the criminal codes of most States.‘” Id. (quoting Taylor, 495 U.S. at 598-99). The Court then matched the elements of the offense of conviction against those of the generic crime. Id. The second categorical-approach method, though, concerns statutes that do not reference a certain offense, but rather “some other criterion” as the measure for prior convictions. Id. The example given for this second methodology was where an immigration statute assigned consequences for a prior conviction for an offense that “involves fraud or deceit,” and the Court simply looked to whether the prior offense‘s elements “necessarily entail fraudulent or deceitful conduct” as the appropriate measure. Id. (quoting Kawashima v. Holder, 565 U.S. 478, 483-85 (2012)). We will call this second method the conduct-based method.
Ruth, 966 F.3d at 646 (alteration in original). Accordingly, we held in Ruth that the conduct-based method applies to determining whether a state offense is a “serious drug offense” under the Armed Career Criminal Act. Id. at 647.
2. The Saving Clause Gateway to § 2241
Section 2255 allows a federal prisoner to seek collateral review of his sentence by motion. Usually, a prisoner is limited to one motion. The statute, however, permits a successive motion only if the prisoner‘s claim is based on “newly discovered evidence” or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
“The statutory saving clause,
We have established a three-part test to determine whether a petitioner is entitled to relief under the saving clause:
To pursue relief under
§ 2241 , a petitioner must establish that “(1) the claim relies on a statutory 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 retroactively; and (3) the error is grave enough to be deemed a miscarriage of justice.”
Chazen, 938 F.3d at 856 (quoting Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)).
3. Gamboa‘s Eligibility for § 2241 Relief
Gamboa‘s ability to pursue relief under
Addressing the government‘s second argument resolves this appeal. The second requirement of our test to determine whether a petitioner is entitled to relief under the saving clause has two parts: retroactivity and prior unavailability of the challenge. See Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016). Our analysis here is focused on prior unavailability of the challenge.
“[W]e have repeatedly stressed that a petitioner seeking to invoke the saving[] clause must establish that he was unable to raise his statutory claim at the time of his original
The district court found that Gamboa‘s arguments as to whether his prior state convictions are broader than the definition of a “felony drug offense” were available to him pre-Mathis. We agree with the district court. Gamboa is therefore unable to pursue relief under the saving clause gateway to
A dive into Gamboa‘s arguments demonstrates why. Gamboa argues that applying Mathis shows his prior state drug convictions do not constitute felony drug offenses for the purposes of the sentencing enhancement under
In determining whether Iowa‘s burglary qualified as a violent felony predicate under the Armed Career Criminal Act, the Court in Mathis focused on whether the district court erred in using Mathis‘s conviction records to determine which type of burglary he committed, and whether the different locations in the Iowa burglary statute amounted to alternative means or alternative elements. Mathis, 136 S. Ct. at 2250-51. The Supreme Court held that the modified categorical approach is unavailable when a statute lists multiple means to satisfy just one element — thus resolving the split by rejecting the Eighth Circuit‘s prior approach. Id. at 2253. The distinction between elements and means is important, the Court explained, because if a state statute lists alternative means, instead of alternate elements, the statute is not divisible. Id. at 2257. That is, a court may not rely on the modified categorical approach to determine which of the alternatives formed the basis of a defendant‘s conviction. Id.
Based on the clarification Mathis provided about the distinction between elements versus means, Gamboa argues that it was not until the Supreme Court reversed
Because Gamboa seeks to invoke the saving clause, it is not necessary to examine the merits of his claim, because it is not relevant whether his claims have any merit if he was able “to raise his statutory claim at the time of his original
But Gamboa insists that he was foreclosed from bringing his claims pre-Mathis because of Eighth Circuit precedent — pointing to United States v. Payton, 918 F.2d 54 (8th Cir. 1990), and United States v. Cornelius, 931 F.2d 490 (8th Cir. 1991). In Payton, the Eighth Circuit reviewed the same Iowa burglary statute that was later found indivisible and not subject to the modified categorical approach by the Supreme Court in Mathis. 918 F.2d at 55. The Eighth Circuit at that time looked to the charging paper and determined that the defendant was charged and convicted with burglary of a building. Id. at 56. In Cornelius, the Eighth Circuit held that the district court erred when it believed that Taylor prevented it from looking beyond the defendant‘s guilty plea to determine whether the elements of the offense for which he was convicted constituted generic burglary. 931 F.2d at 494.
Both Payton and Cornelius dealt with whether the respective district courts could look to charging papers to determine whether they contained the elements of generic burglary required by Taylor. But those cases are not pertinent to what Gamboa is really arguing here. He is arguing that the Minnesota and North Dakota statutes are categorically broader than the relevant federal statutes.
Indeed, he relies on our decision in De La Torre, to argue the three state statutes are categorically broader than the federal definitions because the states’ drug schedules criminalize substances that the federal schedules do not. 940 F.3d at 949. He then relies on precedent from our circuit, like Elder, to argue that the three state statutes are not divisible. 900 F.3d at 497, 501-03 (applying the Taylor categorical approach but declining to apply the modified categorical approach in finding that the Arizona statute at issue criminalizes a broader category of drugs than
We therefore cannot see how Payton and Cornelius prevented Gamboa from making an argument in the Eighth Circuit that an alternatively phrased statute could be indivisible under the categorical approach at the time of his initial
Simply, Gamboa cannot seek relief under the saving clause gateway to
III. CONCLUSION
For the reasons above, the district court‘s denial of Gamboa‘s petition for writ of habeas corpus is AFFIRMED.