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Chazen v. Marske

United States Court of Appeals, Seventh Circuit

September 9, 2019

Todd R. Chazen, Petitioner-Appellee,
v.
Matthew Marske, Respondent-Appellant.

          Argued February 8, 2019

          Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17-cv-447 - James D. Peterson, Chief Judge.

          Before Flaum, Barrett, and Scudder, Circuit Judges.

          Scudder, Circuit Judge.

         A federal jury in Minnesota convicted Todd Chazen of possessing a firearm following a prior felony conviction. The district court then sentenced Chazen pursuant to the Armed Career Criminal Act, which mandates a minimum 15-year sentence for a defendant who unlawfully possesses a firearm and has three prior convictions for a serious drug offense or violent felony. After an unsuccessful direct appeal and petition for post-conviction relief under 28 U.S.C. § 2255, Chazen turned to 28 U.S.C. § 2241 and sought a writ of habeas corpus, arguing that the application of a recent Supreme Court decision shows he no longer qualifies as an armed career criminal and is entitled to a lesser sentence. The district court agreed and granted habeas relief. We affirm.

         I

         A. Chazen's Sentencing and Direct Appeal

         Following a 2011 trial in the District of Minnesota, a jury convicted Todd Chazen of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). While this offense ordinarily carries a ten-year maximum sentence, 18 U.S.C. § 924(a)(2), the district court considered whether Chazen qualified for an enhanced sentence under the Armed Career Criminal Act.

         The Act mandates a 15-year minimum sentence if a defendant has three or more prior convictions for a "violent felony" or "serious drug offense." 18 U.S.C. § 924(e)(1). The Act defines violent felony as any federal or state felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the elements clause) or is "burglary, arson, or extortion" (the enumerated offenses clause). Id. § 924(e)(2)(B). At the time of Chazen's sentencing, the definition also included a residual clause, which encompassed any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. In Johnson v. United States, the Supreme Court held the residual clause void for vagueness. 135 S.Ct. 2551, 2557 (2015).

         Chazen has five felony convictions under Minnesota law: second-degree assault; second-degree manufacture of a controlled substance; escape from custody; and two convictions for second-degree burglary. At sentencing the government conceded that because Chazen's two burglary convictions occurred on the same day and involved the same course of conduct, they should not be counted as separate predicate convictions under the Armed Career Criminal Act. The government further conceded that Chazen's controlled substances conviction did not qualify as a serious drug offense within the meaning of the Act. But it nonetheless advocated for an enhanced sentence on the basis of Chazen's three remaining convictions-for assault, escape, and burglary. For his part, Chazen agreed that one of his burglary convictions and his assault conviction were qualifying felonies, but argued that he was not an armed career criminal because his escape conviction did not count as a violent felony predicate.

         The district court in Minnesota sided with the government and sentenced Chazen to 21 years' imprisonment. In doing so, the court did not specify which convictions qualified Chazen as an armed career criminal, noting only that "there [were] a number of possibilities" and finding (without further elaboration) that Chazen had "at least four" predicates.

         On direct appeal in the Eighth Circuit, Chazen challenged his enhanced sentence, arguing that the district court erred by concluding that his Minnesota escape conviction was a qualifying felony under the Armed Career Criminal Act's residual clause. Relying on the government's concessions at sentencing, he maintained that without the improper consideration of his escape conviction, he no longer had three qualifying offenses. The government responded by withdrawing its concessions about Chazen's burglary convictions and his drug conviction, asserting that any error with his escape conviction was harmless because, even without it, at least three qualifying convictions remained. It also contended that Chazen's escape argument was directly foreclosed by Eighth Circuit precedent. The Eighth Circuit agreed with the government and affirmed Chazen's sentence, concluding that the escape conviction qualified as a predicate under the Act's residual clause. See United States v. Chazen, 469 Fed.Appx. 508, 509 (8th Cir. 2012).

         B. Chazen's § 2255 Petitions

         In 2013, Chazen invoked 28 U.S.C. § 2255 and petitioned for post-conviction relief in the District of Minnesota, again challenging his classification as an armed career criminal. Chazen persisted in his contention that the sentencing court erred in determining that his escape conviction qualified as a violent felony predicate. He also argued that the court was unable to rely on his drug conviction or one of his burglary convictions given the government's concessions at sentencing. The district court denied relief, concluding that the escape conviction qualified as a violent felony and finding Chazen's other arguments procedurally defaulted.

         Two years after Chazen's unsuccessful § 2255 petition, the legal landscape shifted. First, the Supreme Court held that the Act's residual clause was unconstitutionally vague. See Johnson, 135 S.Ct. at 2557. Because Chazen's escape conviction was a residual-clause offense, he sought authorization from the Eighth Circuit to file a second § 2255 petition for post-conviction relief. He simultaneously proceeded to file a second § 2255 petition in the sentencing court (the District of Minnesota), arguing that because Johnson knocked out his escape conviction, he no longer qualified as an armed career criminal. The government agreed that Chazen's escape conviction no longer qualified as a predicate following Johnson. But the government maintained that Chazen still had the three strikes requisite to qualify as an armed career criminal owing to his Minnesota assault conviction and two burglary convictions. In May 2016, the Eighth Circuit summarily denied Chazen's application to file a second § 2255 petition. The Minnesota district court then concluded it lacked jurisdiction to consider his § 2255 petition.

         C. Chazen's § 2241 Petition

         The landscape shifted a second time in June 2016, when the Supreme Court decided Mathis v. United States, 136 S.Ct. 2243. Mathis was meaningful because it narrowed the range of state statutes that qualify as violent felony predicates under the Armed Career Criminal Act. Seeing this development, Chazen again pursued post-conviction relief, this time by filing a petition under 28 U.S.C. § 2241 in the Western District of Wisconsin, where he is serving his sentence.

         In response to this new petition, the parties agreed that, due to intervening changes in the law, only three of Chazen's prior Minnesota convictions potentially qualified him as an armed career criminal: his second-degree assault conviction and his two second-degree burglary convictions. Relying on Mathis, Chazen argued that his burglary convictions no longer counted as violent felonies under the Act's enumerated offense clause. He also pointed to the Eighth Circuit's decision in United States v. McArthur, 850 F.3d 925, 940 (8th Cir. 2017), which held that the Minnesota crime of third-degree burglary no longer qualifies as a predicate under the Act after the Supreme Court's decision in Mathis.

         Another legal development occurred in 2018. While Chazen's § 2241 petition was pending in the district court (in the Western District of Wisconsin, where he is confined), this court joined the Eighth Circuit in holding that because the Minnesota burglary statute covers more conduct than generic burglary, it does not qualify as a predicate violent felony under the Act. See Van Cannon v. United States, 890 F.3d 656, 665 (7th Cir. 2018). We reached this conclusion with respect to second-degree burglary, but the parties agree that for purposes of this appeal, there is no meaningful distinction between second- and third-degree burglary under Minnesota law.

         Relying on both Mathis and Van Cannon, the district court granted Chazen's § 2241 petition, concluding that his burglary convictions no longer qualified as violent felony predicates. This left Chazen with only one qualifying predicate (his Minnesota assault conviction), which was not enough for an enhanced sentence under the Act. Accordingly, the district court ordered resentencing.

         As part of affording Chazen habeas relief under § 2241, the district court took care to address a procedural point that defines much of the battleground in this appeal. The court determined that relief was available to Chazen under § 2241 because, at the time of his original § 2255 petition in 2013, Eighth Circuit precedent foreclosed any contention that his two prior Minnesota burglary convictions did not qualify as violent felony predicates under the Act. Being foreclosed like this meant that, following Mathis, Chazen was able through the so-called savings clause in § 2255(e) to pursue relief pursuant to § 2241.

         In granting relief, the district court (in Wisconsin) transferred Chazen's case back to the District of Minnesota (the district of conviction) for resentencing. The government now appeals.

         II

         At this point, all agree that the validity of Chazen's sentence under the Armed Career Criminal Act depends on whether his two prior Minnesota burglary convictions qualify as generic burglary under the Act's enumerated offense clause. They take different positions on the merits of that question while also spilling substantial ink on the very knotty procedural issue ...


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