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Westover v. Krueger

United States District Court, S.D. Indiana, Terre Haute Division

November 13, 2018

J. E. KRUEGER Warden, Respondent.



         Petitioner 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.

         I. Standard

         To 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).

         II. Legal Background

         The 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.

         III. Factual and Procedural Background

          On May 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. 124.

         The 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.

         Mr. 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)).

         Ultimately, 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.

         On May 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.

         Mr. Westover now files a petition under § 2241 challenging his sentence.

         IV. ...

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