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Friday, May 10, 2013

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal [Updated]

In ROYCE BROWN v. JOHN F. CARAWAY, WARDEN (SD Ind., Lawrence), a 28-page opinion before Judges POSNER , FLAUM , and SYKES, followed by a unusual 10-page statement by Chief Judge Easterbrook, Judge Flaum writes:

In 1996, a jury in the district court for the District of Delaware convicted Royce Brown of one count of possession with intent to distribute cocaine base and one count of possession of a firearm by a felon. At sentencing, the district court classified Brown as a “career offender” under U.S.S.G. § 4B1.1. Brown filed a timely 28 U.S.C. § 2255 motion arguing that “counsel was ineffective for failure to object to his sentencing as a career offender which resulted in his sentence being a minimum of 360 months instead of between 262 and 327 months.” The district court rejected this argument, and the Third Circuit denied a certificate of appealability.

Now incarcerated in Indiana, Brown filed a pro se habeas petition under 28 U.S.C. § 2241 in the Southern District of Indiana, contending that under Begay v. United States, 553 U.S. 137 (2008), his prior Delaware conviction for Arson in the Third Degree did not qualify as a crime of violence under U.S.S.G. § 4B1.1. The district court dismissed his habeas petition sua sponte, reasoning that “the savings clause embodied in 2255(e) requires a claim of actual innocence directed to the underlying conviction, not merely the sentence.” Brown now appeals, aided by appointed counsel.

As an initial matter, the district court erred in concluding that challenges to a sentence (rather than the underlying conviction) are categorically barred under 28 U.S.C. § 2241. On the merits, Brown is entitled to relief under § 2241. Under Begay, Brown’s prior conviction for Arson in the Third Degree under Delaware law does not qualify as “generic” arson under the enumerated crimes clause of the career offender Guideline, nor is it covered by the residual clause. We therefore reverse the decision of the district court and hold that Brown is entitled to relief under § 2241. * * *

For the foregoing reasons, we REVERSE the decision below and REMAND with instructions to reduce Brown’s sentence to reflect our finding that he is not a career offender within the meaning of § 4B1.1.

[Beginning on p. 28 of 38 is a "Statement of EASTERBROOK, Chief Judge, concerning the circulation under Circuit Rule 40(e)" that begins] Justices of the Supreme Court sometimes file statements explaining why they have voted not to grant certiorari, even though they doubt the soundness of the decision under review. See, e.g., Calhoun v. United States, 133 S. Ct. 1136 (2013) (statement of Sotomayor, J.). Likewise appellate judges may explain why they have not voted to hear a case en banc, even though they doubt the soundness of the panel’s decision. See, e.g., Freeman United Coal Mining Co. v. Director, OWCP, 999 F.2d 291 (7th Cir. 1993) (statement of Easterbrook, J.), vacated, 512 U.S. 1231 (1994), in light of Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). Here, too, I have doubts about the panel’s decision, though I do not think that a hearing en banc would help.

[Updated 5/13/13] The 7th Circuit has posted a correction to this opinion. Access it here.

Posted by Marcia Oddi on May 10, 2013 01:36 PM
Posted to Ind. (7th Cir.) Decisions