Opinion
CV-22-00350-TUC-SHR (JR)
07-19-2023
Rickie Lynn Rarey, Petitioner, v. Unknown Gutierrez, Respondent.
REPORT AND RECOMMENDATION
Honorable Jacqueline AL Rateau, United States Magistrate Judge.
Petitioner Rickie L. Rarey (“Petitioner”), currently confined in the United States Penitentiary-Tucson in Tucson, Arizona, filed Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (“Petition”). (Doc. 1). This matter is on referral to the undersigned for Report and Recommendation. (Doc. 7). Before the Court are the Petition and Respondent's combined Response to Petition For Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Motion to Dismiss (“Answer”). (Doc. 22). Petitioner did not reply. As more fully set forth below, the Magistrate Judge recommends that the District Court deny the Petition.
The background is taken primarily from Respondent's Answer to which no objection has been made.
Petitioner's Conviction
Petitioner stipulated to the following facts related to his conviction:
On April 19, 2009, a report was made to the Indiana Department of Children's Services (DCS) that Jane Doe 2, a minor female less than ten years of age, had been molested by Petitioner. The custodial parent of Jane Doe 2 allowed Petitioner to babysit Jane Doe 2, as well as her other minor children, including at his home and on overnight stays.
On April 20, 2009, Jane Doe 2 was interviewed by Detective Chris Roberts of the Bartholomew County Sheriff's Department. Jane Doe 2 disclosed that Petitioner had touched her on her genitals and breasts and that he had given her and her younger sister, Jane Doe 1, baths at his residence.
On April 28, 2009, Jane Doe 1 was interviewed by Det. Roberts. Jane Doe 1 is a minor female currently under ten years of age. Jane Doe 1 stated that she and her siblings are frequently babysat by Petitioner and that she refers to Petitioner as “dad.” Jane Doe 1 disclosed that Petitioner had touched her breasts and genitals, both over and under her clothing, and that she had witnessed Petitioner doing the same to Jane Doe 2. Jane Doe 1 also disclosed that Petitioner had videotaped her in the bathtub and taken pictures of her on his cell phone.
On May 5, 2009, a search warrant was obtained by the Bartholomew County Sheriff's Department through the Bartholomew County Superior Court for the search of Petitioner's residence in Columbus, Indiana, and the seizure of Petitioner's cell phone, as described by Jane Doe 1, and Petitioner's laptop computer. The search warrant was executed that same day and a cell phone and laptop computer belonging to Petitioner were seized.
In late June 2009, Detective Robert Simpson of the Indiana State Police (ISP), who is detailed to the FBI Cyber Crimes Task Force, was requested to do a forensic preview of Petitioner's laptop computer. During the course of his forensic preview, Det. Simpson discovered numerous images depicting sexually explicit conduct involving a minor female readily identifiable as Jane Doe 1.
On July 1, 2009, Detectives Greg Duke and Chris Roberts of the
Bartholomew County Sheriff's Department interviewed Petitioner at his new residence in Bloomington, Indiana. Petitioner was advised of his rights pursuant to Miranda v. Arizona and agreed to speak with them. Petitioner was shown many nude images of Jane Doe 1 recovered from his computer. Petitioner admitted to having taken the images on his cell phone camera and then transferring them to his laptop computer. Petitioner also admitted to having touched Jane Doe 1 on her vagina on more than one occasion. Petitioner consented to the seizure of another cell phone, an LG-brand “enV” cell phone, with which he stated he had produced images of sexually explicit conduct of Jane Doe 1. Petitioner denied producing images of Jane Doe 2 engaged in sexually explicit conduct. Petitioner was taken into custody.
Federal search warrants were obtained to authorize a search of Petitioner's cell phones, as well as a memory card that was in his laptop computer when it was seized. Additional sexually explicit images of Jane Doe 1 were discovered, as well as images of her sister, Jane Doe 2. Based on forensic review of these items, it was determined that many of the sexually explicit images of Jane Doe 1 were produced on or about December 12, 2008, within the Southern District of Indiana. It was similarly determined that many of the sexually explicit images of Jane Doe 2 were produced on or about February 24, 2009, within the Southern District of Indiana.
All of the images of sexually explicit conduct of Janes Does 1 and 2 were produced using the LG-brand “enV” cell phone camera surrendered by Petitioner on July 1, 2009. LG-brand “enV” cell phones are manufactured outside the State of Indiana.
In October 1993, Petitioner pled guilty to three counts of Child Molestation, a Class “C” Felony, in Bartholomew County, Indiana, Circuit Court, for molesting a minor female under twelve (12) years of age by rubbing her vagina on three separate occasions, in violation of Indiana Criminal Code 3542-4-3. Petitioner is a registered sex offender.United States v. Rarey, 1:09-cr-00130-JPH-DLP-1, at Doc. 27 (Stipulated Factual Basis) (S.D. Ind.).
In 2009, Petitioner was charged in a seven-count indictment with six counts of sexually exploiting children/producing sexually explicit images of a minor, in violation of 18 U.S.C. §§ 2251(a) and 3559(e)(1) (Counts 1-6), and one count of committing Counts 1-6 while he was required to register as a sex offender, in violation of 18 U.S.C. § 2260A (Count 7). Id. at Doc. 3 (Indictment). The indictment included a sentencing enhancement in that, under 18 U.S.C. § 3559(e)(1), the government alleged that Petitioner had a prior sex crime conviction, a 1994 Indiana state court conviction for three counts of child molesting-where Petitioner fondled and touched the body of a child who had not attained the age of 12 with the intent to satisfy Petitioner's sexual desires. Id.
In December 2009, Petitioner filed a Petition to Enter a Plea of Guilty to Counts 1 and 3. Id. at Doc. 23 (Petition to Enter a Plea of Guilty and Request for Presentence Investigation). As a result of Petitioner's prior felony sex offense, his statutory mandatory term of imprisonment was life. (Doc. 26 (Pre-Sentence Report under seal) at ¶ 102). Based on a total offense level of 43 and a criminal history category of V, Petitioner's guideline range was also life imprisonment. Id. at ¶ 103.
On February 10, 2010, Petitioner pleaded guilty to two counts of sexually exploiting a minor and was sentenced to life imprisonment. See Rarey, 1:09-cr-00130-JPH-DLP-1, at Doc. 28 (Judgment). See also, Rarey v. United States, No. 18-1670 at Doc. 1, p. 4 (7th Cir. Apr. 19, 2018). Petitioner did not appeal. Id. at p. 5.
Post-Conviction Proceedings
In 2011, Petitioner filed a motion to vacate under § 2255 claiming that his trial counsel was ineffective for allowing him to unknowingly plead guilty to a life sentence. See Rarey v. United States, 1:11-cv-00192-LJM-DKL, 2013 WL 12441284 (S.D. Ind. Oct. 3, 2013). Petitioner's § 2255 motion was denied. Id. He appealed and the Seventh Circuit Court of Appeals denied his request for a certificate of appealability. See Rarey v. United States, No. 13-3525 (7th Cir. May 9, 2014).
In 2015, Petitioner filed a successive § 2255 motion. See Rarey v. United States, 1:15-cv-00255-LJM-TAB, at Doc. 1 (S.D. Ind.). The district court dismissed Petitioner's successive § 2255 motion for lack of jurisdiction because he failed to seek prior authorization from the Seventh Circuit Court of Appeals to file a successive § 2255 motion. Id. at Doc. 2 (Order dismissing 2255 motion).
The Instant Petition
Petitioner filed the instant Petition on August 4, 2022 raising one ground for relief. (Doc. 1). He claims that “his Indiana conviction, used to apply 3559(e), do (sic) not meet the definition of ‘Federal Sex offense[.]' Therefore, those state convictions should not have been used to enhance his life sentence.” Id. at 10. He seeks a resentencing “within the guidelines sentence and a term of supervised release.” Id. at 14.
THE PETITION IS BARRED BY JONES V. HENDRIX
Petitioner claims that “his Indiana conviction[s], used to apply [§] 3559(e), do not meet the definition of a ‘Federal Sex offense' [and, therefore,] those state convictions should not have been used to enhance his life sentence.” (Doc. 1 at 10). He urges that his state law convictions [a]re categorically broader than the federal definition of ‘Federal Sex offense' found at 18 U.S.C. [§] 3559(e).” Id. at 11. He also urges that he has not had an “unobstructed procedural shot” at presenting his claim insisting that ‘Descamps and Mathis changed the law, allowing [him] to argue, for the first time, that the categorical approach applies to his state prior convictions.'” Id. at 14.
Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).
Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).
The Petition, filed after April 24, 1996, is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000). As explained below, this Court finds that the Petition is foreclosed by the United States Supreme Court's recent decision in Jones v. Hendrix, 599 U.S. __, __ S.Ct. __, L.Ed.2d __, 2023 WL 4110233 (June 22, 2023). Jones held:
Separately, since the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), second or successive § 2255 motions are barred unless they rely on either “newly discovered evidence,” § 2255(h)(1), or “a new rule of constitutional law,” § 2255(h)(2). A federal prisoner may not, therefore, file a second or successive § 2255 motion based solely on a more favorable interpretation of statutory law adopted after his conviction became final and his initial § 2255 motion was resolved.
The question presented is whether that limitation on second or successive motions makes § 2255 “inadequate or ineffective” such that the prisoner may proceed with his statutory claim under § 2241. We hold that it does not.Jones v. Hendrix, 143 S.Ct. 1857, 1863 (2023). (emphasis added). In Hogsett v. Lillard, No. 22-2182, __ F.4th __, 2023 WL 4394081, at *2 (7th Cir. July 7, 2023), the United States Court of Appeals for the Seventh Circuit interpreted Jones as holding:
§ 2255(e) ‘does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent [the] restrictions on second or successive § 2255 motions by filing a § 2241 petition.' 599 U.S.__, __ S.Ct. __, __ L.Ed.2d __, 2023 WL 4110233, at *5 (June 22, 2023). Instead, the saving clause is designed to ‘cover[ ] unusual circumstances in which it is impossible or impracticable for a prisoner to seek relief from the sentencing court' in a § 2255 motion. Id. at __, __ S.Ct. __, 2023 WL 4110233, at *6 (giving examples including the dissolution of the sentencing court).... ‘The inability of a prisoner with a statutory claim to satisfy' § 2255(h)'s requirements, the Court explained, ‘does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all.' Id. at __, __ S.Ct. __, 2023 WL 4110233, at *9.Hogsett, __ F.4th __, 2023 WL 4394081, at *2. See also, Sanders v. Joseph, No. 19-2504, __ F.4th __, 2023 WL 4397743, at *2 (7th Cir. July 7, 2023) (same); Horton v. Lovett, No. 21-1004, __ F.4th __, 2023 WL 4397747 (7th Cir. July 7, 2023) (same).
Petitioner here is asserting an intervening change in statutory interpretation to circumvent the restrictions on a second or successive § 2255 motion. As laid out above, Petitioner has already filed a first § 2255 motion and a successive § 2255 motion was dismissed for lack of jurisdiction because he failed to seek prior authorization from the Seventh Circuit Court of Appeals to file a successive § 2255 motion. Through the instant Petition, Petitioner seeks to circumvent the AEDPA's restrictions on filing second or successive § 2255 motions by filing a § 2241 petition asserting an intervening change in statutory interpretation. See Doc. 1 at 14 (claiming “Descamps and Mathis changed the law, allowing [him] to argue, for the first time, that the categorical approach applies to his state prior convictions.”). However, Jones v. Henrix precludes Petitioner from doing so. See Jones, 599 U.S. __, __ S.Ct. __, __ L.Ed.2d __, 2023 WL 4110233, at *5 (holding that “§ 2255(e) does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent [the] restrictions on second or successive § 2255 motions by filing a § 2241 petition.”).
In light of the foregoing, this Court finds that the district court lacks jurisdiction to consider the Petition in light of the United States Supreme Court decision in Jones v. Hendrix.
ALTERNATIVELY, THE DISTRICT COURT ALSO LACKS JURISDICTION TO ENTERTAIN THE PETITION UNDER PRE-JONES V. HENDRIX LAW
As more fully set forth below, this Court alternatively finds that the district court lacks jurisdiction to consider the Petition under pre-Jones v. Hendrix law.
Section 2255(e), 28 U.S.C., provides, in relevant part:
An application for a writ of habeas corpus [o]n behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C.A. § 2255(e). “As a general rule, ‘a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention[.]'” Allen v. Ives, 950 F.3d 1184, 1188 (9th Cir. 2020) (quoting Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006)). (internal citations omitted). “An exception to the general rule, termed the § 2255(e) ‘escape hatch,' permits a federal prisoner to ‘file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or ineffective to test the legality of his detention.'” Allen, 950 F.3d at 1188 (quoting Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (per curiam) (quoting § 2255(e)). The United States Court of Appeals for the Ninth Circuit has held that “a remedy under § 2255 is inadequate or ineffective where ‘the prisoner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.'” Allen, 950 F.3d at 1188 (quoting Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012)). Both requirements must be satisfied. Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012).
This provision of § 2255(e) is also referred to as the “savings clause.” See Terry v. Shartle, No. CV 15-00107-TUC-CKJ, 2017 WL 5151130, at *5 (D. Ariz. 2017) (recognizing that the “remedy [in § 2255(e)] is referred to as either the ‘savings clause' or ‘escape hatch' provision”). (citation omitted).
As mentioned above, Petitioner contends that the district court has jurisdiction to entertain his post-conviction challenge to his sentence because “his Indiana conviction[s], used to apply [§] 3559(e), do not meet the definition of a ‘Federal Sex offense' [and, therefore,] those state convictions should not have been used to enhance his life sentence.” (Doc. 1 at 10). He claims that his state law convictions [a]re categorically broader than the federal definition of ‘Federal Sex offense' found at 18 U.S.C. [§] 3559(e).” Id. at 11. He urges that he has not had an “unobstructed procedural shot” at presenting his claim insisting that ‘Descamps and Mathis changed the law, allowing [him] to argue, for the first time, that the categorical approach applies to his state prior convictions.'” Id. at 14.
Respondent argues that the Indiana state law under which Petitioner was convicted is not overly broad. In other words, Respondent insists that Petitioner fails to make a meritorious actual innocence argument. (Doc. 22 at 7-10). Respondent also urges that Petitioner has had an unobstructed procedural shot at presenting the claim he raises in the Petition explaining that the legal basis for Petitioner's claim arose in 1990 when the United States Supreme Court decided Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Id. at 10-12. Respondent contends that while Petitioner attempts to rely upon Mathis and Descamps, his claim does not rely upon those cases. Id.
As explained below, this Court agrees with Respondent that the Indiana state laws under which Petitioner was convicted are not overly broad. Thus, this Court finds that Petitioner fails to satisfy the ‘actual innocence' requirement of § 2255(e)'s escape hatch. This Court also agrees with Respondent that under precedent from the United States Court of Appeals for the Seventh Circuit, Petitioner's claim could have been raised in his first § 2255 motion. Thus, this Court also finds that Petitioner has failed to establish that he has not had an unobstructed procedural shot at presenting his actual innocence claim.
In sum, and as more fully explained below, this Court finds that Petitioner fails to satisfy either requirement of § 2255(e)'s escape hatch provision. As a result, this Court finds that the district court lacks jurisdiction to consider the Petition.
Actual Innocence
“A defendant's state conviction qualifies as a predicate offense if the statute defines the offense the same as (or more narrowly than) the Guidelines.” Blue v. Williams, 824 Fed. App'x 419, 422 (7th Cir. 2020) (citing United States v. Edwards, 836 F.3d 831, 835 (7th Cir. 2016)). “But if a statute defines an offense more broadly than the Guidelines, the prior conviction doesn't count, ‘even if the defendant's actual conduct (i.e., the facts of the crime)' would fit within the Guidelines definition.” Edwards, 836 F.3d at 835.
“Consequently, in most cases the sentencing judge's inquiry is limited to ‘the fact of conviction and the statutory definition of the prior offense.'” Edwards, 836 F.3d at 835 (quoting Taylor, 495 U.S. at 602).
Here, as explained below, this Court finds that at the time of Petitioner's Indiana convictions, Indiana state law defined the offenses of which Petitioner was convicted more narrowly that the Guidelines. Thus, this Court finds that Petitioner's prior state law convictions properly qualify as predicate offenses.
Section 3559(e)(1), Title 18, U.S.C., requires a life sentence for a person convicted of a federal sex offense with a minor victim if that person has a “prior sex conviction” with a minor victim. Section 3559(e)(2) defines “prior sex conviction” as:
(A) the term “Federal sex offense” means an offense under section 1591 (relating to sex trafficking of children), 2241 (relating to aggravated sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1) (relating to abusive sexual contact), 2245 (relating to sexual abuse resulting in death), 2251 (relating to sexual exploitation of children), 2251A (relating to selling or buying of children), 2422(b) (relating to coercion and enticement of a minor into prostitution), or 2423(a) (relating to transportation of minors);
(B) the term “State sex offense” means an offense under State law that is punishable by more than one year in prison and consists of conduct that would be a Federal sex offense if, to the extent or in the manner specified in the applicable provision of this title-
(i) the offense involved interstate or foreign commerce, or the use of the mails; or
(ii) the conduct occurred in any commonwealth, territory, or possession of the United States, within the special maritime and territorial jurisdiction of the United States, in a Federal prison, on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country (as defined in section 1151).18 U.S.C. § 3559(e)(2). Petitioner was convicted of sexual exploitation offenses under the under the fondling prong of the Indiana statute. (Doc. 1-1 at 6). At the time of Petitioner's convictions, the relevant Indiana statute had the following fondling prongs:
(b) A person who, with a child under twelve (12) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony. However, the offense is a Class A felony if it is committed by using or threatening the use of deadly force, or while armed with a deadly weapon.
* * *
(d) A person sixteen (16) years of age, or older who, with a child twelve (12) years of age or older but under sixteen (16) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class D felony. However, the offense is a Class B felony if it is committed by using or threatening the use of deadly force, or while armed with a deadly weapon.Ind. Code § 35-42-4-3(b), (d) (1990).
Petitioner argues that Indiana's definition of “minor” is “not consistent with the roving ages selected by the Indiana legislature . . .” (Doc. 1 at 12). He also insists that the state statute of conviction is overly broad because 18 U.S.C. § 2245(2)(D) defines “. . . the ‘intentional touching, not through clothing' of a minor[] b]ut Indiana's code allows for a very vague definition of ‘any fondling or touching' without reference to clothing or the lack thereof.” Id. at 12-13. As explained below, this Court rejects Petitioner's arguments.
Indiana's Definition of Minor is Not Overly Broad
Under 18 U.S.C. § 3559(e), “the term ‘minor' means an individual who has not attained the age of 17 years.” See 18 U.S.C. § 3559(e)(2)(D). At the time Petitioner committed his state offenses, under Indiana law child molesting could be committed against anyone under 12 or 16 years of age (depending on the age of the perpetrator). See Ind. Code § 35-42-4-3 (1990). Under current Indiana law, the age ceiling is 14 years of age. See Ind. Code § 35-42-4-3. Either way, the age ceiling under Indiana law is lower than the federal age ceiling. Thus, the Indiana statutory definition of “minor” is not overly broad compared to the definition of minor set forth in 18 U.S.C. §3559(e)(2)(D).
Petitioner refers to Indiana's “roving ages.” See Doc. 1 at 12 (stating that “18 U.S.C. 2256(1) defines ‘minor' as ‘means (sic) any person under the age of 18 years, which is not consistent with the roving ages selected by the Indiana legislature . . .”). As pointed out by Respondent, depending upon the age of the perpetrator, in order to violate Indiana Code § 35-42-4-3 the victim has to be under 12 or under 16 years of age. See Ind. Code § 35-424-3 (1990). However, both ages 12 and 16 are younger than age 17 which is the age threshold under federal law. See 18 U.S.C. § 3559(e)(2)(D).
In sum, this Court finds that Indiana's definition of the term “minor” is not broader than the definition of the term “minor” under federal law.
Indiana's Definition of Fondling is Not Overly Broad
Petitioner also claims that Indiana's definition of “fondling” is broader than federal law. (Doc. 1 at 12). He asserts that Indiana state law “allows for a very vague definition of ‘any fondling or touching' without reference to clothing or lack thereof.” Id. at 12-13. This Court also agrees with Respondent that Indiana's definition of fondling is not overly broad.
Under 18 U.S.C. § 3559(e)(2)(A), sexual abuse and abusive sexual contact are “federal sex offenses.” See 18 U.S.C. §§ 2242, 2244(a)(1). “Sexual act” is defined to include:
. . . the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with intent to . . . arouse or gratify the sexual desire of any person.18 U.S.C. § 2246(2)(D). “Sexual contact” is defined to include:
. . . the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to . . . arouse or gratify the sexual desire of any person.18 U.S.C. § 2246(3). At the relevant time, Indiana law defined child molesting, to include:
. . . perform[ing] . . . any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person . . .Ind. Code § 35-42-4-3(b), (d) (1990).
The federal indictment charging Petitioner alleged that he fondled a child under the age of 12 with the intent to arouse or satisfy the sexual desire of either the child or himself “by rubbing the child's vagina.” (Doc. 22-1 at 2 (Doc. 3, Indictment)). As laid out above, both Indiana and federal law include the touching of a child with the intent to arouse sexual desires. See 18 U.S.C § 2246(2)(D), (3); Ind. Code § 35-42-4-3. Specifically, § 2246(3), Title 18 U.S.C., defines sexual contact, in part, as occurring either “directly or through the clothing . . .” See 18 U.S.C. § 2246(3).
Accordingly, relevant to Petitioner's arguments in his Petition, both federal law and the operative Indiana state law prohibit the intentional touching of a minor-either directly or through clothing-with the intent to arouse sexual desires. This Court thus finds that the relevant Indiana state law is not overly broad.
In addition to failing to establish that Indiana's definition of fondling is overly broad, Petitioner has failed to establish that the statute is overly broad as applied to him. In Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007), the United States Supreme Court held:
Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own
case or other cases in which the state courts in fact did apply the statute in the special (non[-]generic) manner for which he argues.Gonzales, 549 U.S. at 193. (emphasis added). Petitioner here has failed to demonstrate that Indiana's child molestation statute is overly broad as applied to him. This Court agrees with Respondent that Petitioner cannot demonstrate that Indiana's child molestation statute was overly broad as applied to him because he touched the victim's vagina. See Gonzales, 549 U.S. at 193 (holding that to find that a state statute creates a crime outside of the generic definition of a listed crime, “he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (non[-]generic) manner for which he argues.”). Petitioner has also failed to establish that Indiana's child molestation statute is applied in an overly broad way as he has not pointed to any Indiana authority establishing such. See Doc. 1 at 7-19. Accordingly, this Court finds that Petitioner has failed to establish that Indiana's child molestation statute is applied in an overly broad way.
In sum, this Court finds that at the time of Petitioner's Indiana state law convictions, Indiana law defined the offenses of which Petitioner was convicted more narrowly than, or the same as, federal law defined them. Thus, this Court finds that Petitioner fails to satisfy the “actual innocence” prong of § 2255(e)'s escape hatch provision. This failure compels a finding that the district court lacks jurisdiction over the Petition. Accordingly, this Court recommends that the Petition be dismissed.
Unobstructed Procedural Shot
As laid out above, this Court finds that the Indiana state law under which Petitioner was convicted qualifies as a predicate offense because the relevant state law defines the offense more narrowly than, or the same as, the Guidelines. Because the Court so finds, it need not determine whether Petitioner did not have an unobstructed procedural shot at presenting his claim. Nevertheless, this Court finds that Petitioner did have an unobstructed procedural shot at presenting his actual innocence claim.
In determining whether a habeas petitioner has not had an unobstructed procedural shot a presenting his actual innocence claim, the district court considers “(1) whether the legal basis for petitioner's claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner's claim after that first § 2255 motion.” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (quoting Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008)). (internal quotation marks omitted). The district court looks to the law of the circuit of conviction in determining whether a petitioner's actual innocence claim was available. See Alaimalo, 645 F.3d at 1048-49. See also, Harrington v. Ciolli, Case No. 1:21-cv-00568-SAB-HC, 2022 WL 598027, at *4 n. 4 (E.D. Cal. Feb. 25, 2022), report and recommendation adopted, No. 1:21-CV-00658-AWI-SAB-HC, 2022 WL 4280304 (E.D. Cal. Sept. 15, 2022) (holding that “[the p]etitioner was convicted in the Central District of Illinois, over which the Seventh Circuit has appellate jurisdiction. Therefore, the [c]ourt looks to Seventh Circuit caselaw to determine whether [p]etitioner's actual innocence claim was available.” (citation omitted)).
“An intervening court decision must ‘effect a material change in the applicable law' to establish unavailability.” Harrison, 519 F.3d at 961 (quoting Alaimalo, 645 F.3d at 1047). “That is, an intervening court decision must ‘constitute[ ] a change in the law creating a previously unavailable legal basis for petitioner's claim.'” Harrington, 2022 WL 598027, at *3 (quoting Harrison, 519 F.3d at 961). “If an intervening court decision after a prisoner's direct appeal and first § 2255 motion ‘effect[s] a material change in the applicable law[,]' then the prisoner did not have an unobstructed procedural shot to present his claim.” Allen, 950 F.3d at 1190 (citing Alaimalo, 645 F.3d at 1047-48 (prisoner lacked unobstructed procedural shot where circuit precedent foreclosed his actual innocence claim when he brought his § 2255 motion)).
As mentioned above, Petitioner claims that he has not had an unobstructed procedural shot a presenting his actual innocence claim because the cases upon which he relies-Mathis and Descamps-post-date his initial § 2255 motion which was filed in 2011. (Doc. 1 at 14). Respondent insists that Petitioner's claim does not rely on Mathis and Descamps but rather relies on the long-standing categorial approach announced by the United States Supreme Court in Taylor-which pre-dates Petitioner's initial § 2255 motion. This Court agrees with Respondent.
In Mathis, the Supreme Court held that a conviction under Iowa's burglary statute could not count as an armed career criminal act qualifier because the elements of the crime covered a “greater swath of conduct than the elements of the relevant ACCA offense (generic burglary).” 136 S.Ct. at 2251. Mathis stands for the general principle that a conviction under a state statute should not serve as a predicate offense for purposes of a federal sentencing scheme if that state statute criminalizes a set of activities broader than that described in the relevant federal statute or sentencing guideline.
In Descamps, the Supreme Court clarified that the modified categorical approach did not apply to indivisible statutes. 570 U.S. at 257-58. In doing so, the Court rejected an attempt under § 924(e) to apply the modified categorical approach to an indivisible state criminal statute. Relying on its earlier decision in Taylor, the Supreme Court reiterated its “grounds for establishing [its] elements-centric, formal categorical approach[.]” Id. at 267, 133 S.Ct. 2276. WL
As pointed out by Respondent, Petitioner's argument relies upon the United States Supreme Court decision that first laid out the categorical approach, Taylor v. United States, 495 U.S. 575, 600 (1990). Petitioner's claim is a categorical overbreadth challenge based on a comparison of the definition of the Indiana state law under which he was convicted in 1994 and the comparable federal Guidelines definition. (Doc. 1). Petitioner's overbreadth argument does not arise from Mathis or Descamps but from United States v. Taylor, a United States Supreme Court decision handed down in 1990.
This Court has recognized that the Supreme Court in Mathis held:
For more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements. Courts must ask whether the crime of conviction is the same as, or narrower than, the relevant generic offense. They may not ask whether the defendant's conduct-his particular means of committing the crime-falls within the generic definition. And that rule does not change when a statute happens to list possible alternative means of commission: Whether or not made explicit, they remain what they ever were-just the facts, which ACCA (so we have held, over and over) does not care about.Roberson v. Warden, No. CV-17-00286-TUC-JAS (JR), 2019 WL 1793004, at *6 (D. Ariz. Feb. 16, 2019), report and recommendation adopted, 2019 WL 1821459 (D. Ariz. Apr. 24, 2019) (citing Mathis, 136 S.Ct. at 2257). “In Mathis, the Supreme Court noted that it had established the use of the categorical approach in 1990, in Taylor v. United States, 495 U.S. 575 (1990).” Roberson, 2019 WL 1796004, at *6 (citing Mathis, 136 S.Ct. at 2248, 2251, 2257). “Thus, Mathis did not announce a new rule.” Roberson, 2019 WL 1793004 at *6. (citing Holt, 843 F.3d at 722 (holding that Mathis “does not depend on or announce any novel principle of constitutional law”); Yates v. United States, 842 F.3d 1051, 1052 (7th Cir. 2017) (describing Mathis as a successor to Taylor, 495 U.S. 575, and Descamps v. United States, 570 U.S. 254 (2013))).
The Seventh Circuit Court of Appeals has made clear that it is not enough that Mathis and Descamps may support Petitioner's claim if Petitioner could have made the same argument without relying on those two cases. See Parker v. Sproul, No. 18-1697, 2022 WL 258586, at *3 (7th Cir. Jan. 27, 2022). In Parker, the Seventh Circuit held:
But it is not enough that our post-Mathis cases support Parker's claim if he could have made the same arguments without relying on these cases. The saving clause requires “‘some kind of structural problem with section 2255 before section 2241 becomes available.'” Higgs v. Watson, 984 F.3d 1235, 1239 (7th Cir. 2021) (quoting Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (en banc)). In Chazen, we identified such a barrier: Eighth Circuit precedent had blocked Chazen from arguing that his Minnesota burglary conviction was not a violent felony. Chazen at 862. Only after Mathis did that circuit change its view. Id. But Parker has not cited any similar barrier in this circuit. In the absence of such a barrier, he could have argued in his first § 2255 motion in 2014 that Illinois burglary and residential burglary were not violent felonies. True, he would not have had the benefit of Mathis, but he identifies no circuit precedent that, as of 2014, blocked him. Consequently, we conclude that he could have made the same arguments as the litigant in Mathis, based on the Supreme Court's prior ACCA cases that laid out the categorical approach, going back to Taylor, 495 U.S. 575.Parker, No. 18-1697, 2022 WL 258586, at *3 (7th Cir. Jan. 27, 2022). Like the petitioner in Parker, Petitioner here has failed to identify any Seventh Circuit barrier to his ability to make the same claim that he raises in the instant Petition in his first § 2255 motion. See Speed v. Warren, No. 2:21-cv-00111-JPH-MKK, 2023 WL 3060141, at *2-3 (S.D. Ind. April 21, 2023 (holding that the basis and authority for the petitioner's argument were in place since 1990 “when the Supreme Court first laid out the categorical approach in Taylor v. United States, 495 U.S. 600 [ ] (1990) and when the relevant portion of the Illinois and federal drug statutes had taken their current form . . . [t]hus Speed ‘could have made a Ruth-like argument in the district court, on direct appeal, or in his first § 2255 motion based solely on Supreme Court precedent as understood at the time of those proceedings.'” (citing Kelso v. Quintana, No. 21-3350, 2022 WL 2072485, at *2 (7th Cir. June 9, 2022) (explaining that Ruth ‘appl[ied] the Taylor categorical approach . . .”)); Shaw v. Bell, No. 2:19-cv-00072-JRS-MJD, 2022 WL 594922, at *3-4 (S.D. Ind. Feb. 27, 2022) (holding that “[b]ut nothing prevented Shaw from making the argument presented in Burris in his §2255 motion. In fact, in Burris, the Sixth Circuit recognized that the logic supporting its conclusion ‘ha[d] been true since at least 1990.'”); Blue, 824 Fed. App'x at 421 (holding that habeas relief was not available because the petitioner “could have raised the same arguments in his original motion under § 2255”).
This Court is persuaded by the foregoing decisions from the Seventh Circuit. This Court finds that Petitioner has failed to establish that existing Seventh Circuit precedent foreclosed his overbreadth argument at the time he filed his first § 2255 motion. Accordingly, this Court determines that Petitioner has not established that he did not have an unobstructed procedural shot at presenting his actual innocence claim.
In sum, this Court finds that Petitioner has failed to establish that he satisfies both prongs of § 2255(e)'s escape hatch provision.
RECOMMENDATION
This Court finds that the district court lacks jurisdiction to consider the Petition under Jones v. Hendrix as well as case law preceding Jones v. Hendrix. Thus, this Court RECOMMENDS that the district court, after an independent review of the record, DENY the Petition.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-22-350-SHR. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).