United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING WRIT OF HABEAS CORPUS PURSUANT TO 28
U.S.C. § 2241 AND DIRECTING ENTRY OF FINAL
JANE MAGNUS-STINSON, CHIEF JUDGE
Michael B. Westover seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2241. Mr. Westover asserts that he is no
longer an armed career criminal under the Armed Career
Criminal Act (“ACCA”) because his two prior
Wyoming burglary convictions do not qualify as violent
felonies in view of Mathis v. United States, 136
S.Ct. 2243 (2016). His petition is denied.
succeed on a motion for relief under § 2241, a motion
pursuant to 28 U.S.C. § 2255 must be “inadequate
or ineffective to test the legality of his detention.”
28 U.S.C. § 2255(e). Section 2255 is inadequate or
ineffective if the following three requirements are met:
“(1) the petitioner must rely on a case of statutory
interpretation (because invoking such a case cannot secure
authorization for a second § 2255 motion); (2) the new
rule must be previously unavailable and apply retroactively;
and (3) the error asserted must be grave enough to be deemed
a miscarriage of justice, such as the conviction of an
innocent defendant.” Davis v. Cross, 863 F.3d
962, 964 (7th Cir. 2017). “The petitioner bears the
burden of coming forward with evidence affirmatively showing
the inadequacy or ineffectiveness of the § 2255
remedy.” Smith v. Warden, FCC Coleman-Low, 503
Fed.Appx. 763, 765 (11th Cir. 2013) (citation omitted).
ACCA prescribes a 15-year mandatory minimum sentence if a
defendant is convicted of being a felon in possession of a
firearm following three prior convictions for a
“violent felony” or “serious drug
offense.” 18 U.S.C. § 924(e)(1). The ACCA defines
“violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that 1)
“has as an element the use, attempted use or threatened
use of physical force against the person of another;”
2) “is burglary, arson, or extortion, [or] involves the
use of explosives;” or 3) “otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” § 924(e)(2)(B). These three
“clauses” are respectively known as 1) the
elements clause, 2) the enumerated clause, and 3) the
residual clause. In 2015, the Supreme Court in
Johnson held that the residual clause of the ACCA
was unconstitutionally vague. Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015). In 2016, the
Supreme Court discussed applying a modified categorical
approach when analyzing whether past convictions are counted
under the enumerated clause of the ACCA. Mathis, 136
S.Ct. at 2243.
Factual and Procedural Background
15, 2006, Mr. Westover pleaded guilty in the District of
Wyoming to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1).
United States v. Cotton et al., 2:04-cr-00171-CAB-4
(D. Wyo.) (hereinafter, “Crim. Dkt.”), Crim. Dkt.
United States Probation Office filed a presentence report in
preparation for sentencing. Dkt. 10. Using the 2005 edition
of the Sentencing Guidelines, the Probation Office determined
that being a felon in possession of a firearm provided for a
base offense level of 24 under U.S.S.G. § 2K2.1(a)(2).
Id. at 8, ¶ 13. That level was increased by two
under § 2K2.1(b)(4) because Mr. Westover possessed a
stolen firearm. That level was further enhanced by two
because Mr. Westover obstructed justice by escaping from
custody. His adjusted offense level was 28. Id. at
¶ 18. In addition, the Probation Office found Mr.
Westover to be an armed career criminal, subject to an
enhanced sentence under 18 U.S.C. § 924(e). Id.
¶ 22. As an armed career criminal, his offense level was
30, and he was subject to a mandatory sentence of not less
than 15 years up to life imprisonment. Id.
¶¶ 21, 60. The convictions supporting the armed
career criminal designation included two 1985 burglary
convictions, a 1985 burglary conviction, a 1990 delivery of
cocaine conviction, a 2003 escape conviction, and a 1996
attempted escape conviction. Id. ¶ 20. That
offense level combined with a criminal history Category VI
resulted in a Guidelines custody range of 168 to 210
months' imprisonment. Id. at 17, ¶ 61.
However, because the statutory mandatory minimum term of
imprisonment was 15 years, the Guideline range became 180 to
210 months' imprisonment. Id.
Westover objected to the Probation Office's finding that
he qualified as an armed career offender, arguing that his
1985 burglary convictions were not violent felonies under the
ACCA because they did not involve a dwelling or a threat of
violence. Id. at 19. The probation officer's
response was that “any generic burglary qualifies, and
the analysis is not limited to burglaries of
dwellings.” Id. at 20 (citing Taylor v
United States, 495 U.S. 575 (1990)).
the sentencing court found Mr. Westover's prior
convictions qualified as predicate offenses under the ACCA
and sentenced him to the statutory minimum of 180 months'
imprisonment. Crim. Dkt. 131; Crim. Dkt. 132. Mr. Westover
did not appeal his conviction or sentence.
4, 2016, Mr. Westover filed a motion to vacate pursuant to 28
U.S.C. § 2255 arguing that, pursuant to
Johnson, his predicate offenses no longer fit under
the ACCA. Crim. Dkt. 189; Westover v. United States,
No. 1:16-cv-112-S (D. Wyo.). The district court denied his
motion, finding that Johnson was inapplicable
because Mr. Westover's prior convictions were predicate
offenses under the “enumerated” clause of the
ACCA, and not the “residual” clause. Crim. Dkt.
191. The Tenth Circuit denied Mr. Westover's appeal.
Westover v. United States, 713 Fed.Appx. 734 (10th
Cir. 2017). The Tenth Circuit noted that Mr. Westover's
burglary convictions were for generic burglaries as the
charging documents referenced entries of “a dwelling,
” a high school “building, ” and another
“building.” Id. at 738-39.
Westover now files a petition under § 2241 challenging