In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1362

JOSHUA E. SHEPHERD,

Petitioner-Appellant,

v.

JEFFREY E. KRUEGER,

Warden, FCI, Terre Haute,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 17-CV-26 — Larry J. McKinney, Judge.

____________________

ARGUED SEPTEMBER 12, 2018 — DECIDED DECEMBER 26, 2018

____________________

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit 

Judges.

HAMILTON, Circuit Judge. Petitioner-appellant Joshua E. 

Shepherd was pulled over by the police in Kentucky. The officers found marijuana and a gun in his car. He pleaded guilty 

in federal court to one count of possession of marijuana with 

intent to distribute, one count of being a felon in possession 
2 No. 17-1362

of a firearm, and two counts for criminal forfeiture. At sentencing, the district judge in Kentucky applied an Armed Career Criminal Act (“ACCA”) enhancement based on his prior 

convictions and sentenced Shepherd to the mandatory minimum fifteen years in prison. See 18 U.S.C. § 924(e). For nearly 

ten years, Shepherd has been challenging the enhanced sentence under ACCA. The Sixth Circuit affirmed on direct appeal, and several courts have declined to overturn his sentence in collateral attacks under 28 U.S.C. § 2255.

Though his case originated in Kentucky, Shepherd is in a 

federal prison in Indiana. Having failed to win relief under 

§ 2255 from the district court in Kentucky and the Sixth Circuit, Shepherd filed a motion under 28 U.S.C. § 2241 in the 

Southern District of Indiana. Section 2255 is by far the primary 

route for federal prisoners to challenge the lawfulness of their 

convictions and sentences. Section 2255(h) sharply limits the 

ability of a prisoner to bring a second or successive motion 

under that section. Section 2255(e) steers almost all prisoner 

challenges to their convictions and sentences toward § 2255, 

but it recognizes an exception. A habeas corpus petition under § 2241 may be allowed if the prisoner can show “that the 

remedy by motion [under § 2255] is inadequate or ineffective 

to test the legality of his detention.”

Shepherd seeks relief under § 2241 to take advantage of 

the “inadequate or ineffective” exception in § 2255(e), the 

scope of which is controversial both within this circuit and 

beyond. See Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) 

(en banc) (reversing denial of § 2241 petition by vote of six to 

five); In re Davenport, 147 F.3d 605, 608–09 (7th Cir. 1998); see 

also, e.g., Prost v. Anderson, 636 F.3d 578, 592–93 (10th Cir. 

2011) (reviewing divided circuit opinions on scope of 
No. 17-1362 3

§ 2255(e)); id. at 604–06 (Seymour, J., dissenting in part); Gilbert v. United States, 640 F.3d 1293, 1312–15 (11th Cir. 2011) (en 

banc) (reviewing divided opinions on scope of § 2255(e)); id.

at 1335–36 (Martin, J., dissenting).

The parties have briefed a number of procedural issues, 

including whether Shepherd’s original plea agreement 

waived his right to bring this sort of collateral challenge, 

whether § 2241 should be available to him at all, and if so 

whether this court should apply our own precedent or Sixth 

Circuit precedent (or simply the law of the United States of 

America, since we operate within a unified system). We elect 

to bypass these procedural hurdles for relief because this case 

can be resolved most simply on the merits. The Sixth Circuit 

held recently that Kentucky second-degree burglary qualifies 

as a predicate offense for an ACCA enhancement. United 

States v. Malone, 889 F.3d 310, 313 (6th Cir. 2018), petition for 

cert. filed (U.S. Nov 13, 2018) (No. 18-6671). Our colleagues’ 

statutory interpretation and conclusion are persuasive. We 

see no reason to disagree, whether we have the right and 

power to disagree or not. Cf. Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 803–04 (1988) (resolving jurisdictional disagreement between Seventh and Federal Circuits). 

On the basis of Malone, we affirm the denial of Shepherd’s 

§ 2241 petition.

I. Factual and Procedural Background

Shepherd was pulled over while driving in Kentucky. Police discovered marijuana and a gun in his car. Shepherd 

pleaded guilty in the United States District Court for the Western District of Kentucky in 2008 to one count of possession of 

marijuana with intent to distribute, one count of being a felon 

in possession of a gun, and two counts of criminal forfeiture. 
4 No. 17-1362

The district court found that Shepherd was subject to an 

ACCA enhancement based on his three prior convictions for 

Kentucky second-degree burglary. His plea agreement included the following waiver provision:

The Defendant knowingly and voluntarily 

waives the right to directly appeal his conviction and the resulting sentence pursuant to Fed. 

R. App. P. 4(b) and 18 U.S.C. § 3742. However, 

defendant shall maintain his right to appeal the 

sentence imposed only if the Court departs from 

the applicable advisory guideline range, as determined by the Court. Defendant expressly 

waives the right to contest or collaterally attack 

his conviction and the resulting sentence pursuant to 28 U.S.C. § 2255 or for any other reason.

This waiver provision was discussed at his change of plea 

conference and at sentencing in terms of his direct appeal. The 

judge told him: “So if you want to appeal the issues that you 

raised here today about whether the armed career offender 

statute applies, then you are free to do so.” There was no discussion, however, of Shepherd’s waiver of collateral challenges.

With the ACCA enhancement, Shepherd was sentenced to 

the mandatory minimum fifteen years in prison. On direct appeal, the Sixth Circuit affirmed this decision. United States v. 

Shepherd, 408 F. App’x 945 (6th Cir. 2011) (per curiam). Shepherd then filed a motion for relief under 28 U.S.C. § 2255 in 

the Western District of Kentucky, which was denied. Shepherd appealed that as well, and the Sixth Circuit declined to 

issue a certificate of appealability, writing that “Shepherd’s 
No. 17-1362 5

plea agreement includes an express waiver of the right to collaterally attack his sentence under § 2255.” Shepherd v. United 

States, No. 12-5014 (6th Cir. Feb. 14, 2013) (order). Shepherd 

then filed several successive § 2255 motions in the Sixth Circuit between 2014 and 2016. Most recently, Shepherd sought 

leave in the Sixth Circuit to file a successive § 2255 motion to 

challenge his ACCA sentence based on Johnson v. United 

States, 135 S. Ct. 2551, 2563 (2015). Shepherd argued that he 

no longer qualified as an armed career criminal because his 

prior Kentucky burglary convictions were counted as violent 

felonies under the so-called residual clause in 18 U.S.C. 

§ 924(e)(2)(B)(ii) that Johnson held unconstitutionally vague. 

The Sixth Circuit denied that motion in November 2016, explaining that Shepherd’s sentence depended not on the residual clause but on burglaries as violent felonies enumerated in 

§ 924(e)(2)(B)(ii):

Shepherd was classified as an armed career because he had three prior Kentucky convictions 

for second-degree burglary. The district court 

specifically found at sentencing that the burglary convictions constituted “generic” burglaries and thus were proper predicates under the 

ACCA’s enumerated offenses clause. We also 

found on direct appeal that Shepherd’s seconddegree burglary convictions were “generic” 

burglaries that fell under the enumerated offenses clause. . . . Because Shepherd’s predicate 

offenses were counted under the enumerated 

offenses clause rather than the residual clause, 

Shepherd has not made a prima facie showing 
6 No. 17-1362

that he is entitled to relief under Johnson. See

Johnson, 135 S. Ct. at 2563.1

In re Joshua Shepherd, No. 16-5795 (6th Cir. Nov. 16, 2016) (order).

Finally, in 2017, Shepherd filed a petition for relief under 

28 U.S.C. § 2241(c)(3) in the Southern District of Indiana, 

where he is in prison. He argued that Kentucky’s burglary 

statute is overbroad under Mathis v. United States, 136 S. Ct. 

2243, 2248 (2016), so that his convictions should not count as 

ACCA predicates. The district court dismissed the petition 

under 28 U.S.C. § 2244(a), reasoning that it need not consider 

it because the Sixth Circuit had previously determined the legality of Shepherd’s detention in 2016. Shepherd has appealed to this court.

II. Analysis

We review the denial of a § 2241 petition without deference to the district court’s analysis of the legal issues. Hill v. 

Werlinger, 695 F.3d 644, 647 (7th Cir. 2012). The ACCA lists 

burglary as one of several “violent felonies” that can enhance 

a defendant’s felon-in-possession sentence. 18 U.S.C. 

§§ 924(e)(1), (e)(2)(B)(ii). However, a state burglary offense 

constitutes “burglary” under the ACCA only if the state burglary statute describes the “generic” version of the crime. 

Descamps v. United States, 570 U.S. 254, 257 (2013). Generic 

burglary, under this statutory provision, “contains at least the 

 1 In his reply brief in that appeal, Shepherd had put forward the argument 

that is the subject of his current § 2241 motion—that the Supreme Court’s 

new rule in Mathis v. United States, 136 S. Ct. 2243 (2016), warranted relief. 

However, the Sixth Circuit did not address Mathis in its order denying this 

successive motion.
No. 17-1362 7

following elements: an unlawful or unprivileged entry into, 

or remaining in, a building or other structure, with intent to 

commit a crime.” Taylor v. United States, 495 U.S. 575, 598 

(1990). To decide whether a particular conviction qualifies, 

courts must use a “categorical approach,” focusing “on 

whether the elements of the crime of conviction sufficiently 

match the elements of generic burglary.” Mathis, 136 S. Ct. at 

2248. In Mathis, the Supreme Court recently held that Iowa’s 

burglary statute “covers more conduct than generic burglary” 

because it “reaches a broader range of places: ‘any building, 

structure, [or] land, water, or air vehicle.’” 136 S. Ct. at 2250 (citation omitted).

These issues under ACCA are being sorted out crime by 

crime and state by state. Kentucky law provides: “A person is 

guilty of burglary in the second degree when, with the intent 

to commit a crime, he knowingly enters or remains unlawfully in a dwelling.” Ky. Rev. Stat. Ann. § 511.030. This definitional section is included in the same chapter of the statute:

The following definitions apply in this chapter 

unless the context otherwise requires:

(1) “Building,” in addition to its ordinary meaning, means any structure, vehicle, watercraft 

or aircraft:

(a) Where any person lives; or

(b) Where people assemble for purposes 

of business, government, education, 

religion, entertainment or public 

transportation.
8 No. 17-1362

Each unit of a building consisting of two (2) 

or more units separately secured or occupied 

is a separate building.

(2) “Dwelling” means a building which is usually occupied by a person lodging therein.

(3) “Premises” includes the term “building” as 

defined herein and any real property.

Ky. Rev. Stat. Ann. § 511.010. 

In United States v. Malone, 889 F.3d 310, 313 (6th Cir. 2018), 

the Sixth Circuit answered the question that controls the merits of Shepherd’s § 2241 petition—whether Kentucky seconddegree burglary is “generic burglary” for purposes of the 

ACCA. Its answer was yes. Malone held that Kentucky second-degree burglary is generic burglary because the statute 

applies only to buildings in the ordinary sense. Id. The court 

reasoned that “dwelling” in § 511.030(1) encompasses only 

“buildings” as Taylor understood the term and does not incorporate the broader “building” definition in Kentucky’s separate definitional statute, § 511.010(1). See 889 F.3d at 312–13. 

To arrive at this conclusion, the court compared the language 

of the different definitions quoted above. The key difference 

is that the definition of “dwelling” refers to a building generally, while the definition of “premises” refers to “’building’ as 

defined herein.” Id., citing § 511.010. Thus, the definition of 

“premises” explicitly includes § 511.010(1)’s special “building” definition, and it can therefore include “vehicle[s], watercraft, or aircraft.” Id. By contrast, the definition of “dwelling” does not include that specialized definition since it does 

not say building “as defined herein.” Id. Kentucky’s seconddegree burglary statute’s use of the term “dwelling” means it 
No. 17-1362 9

applies to buildings generally, within the meaning of generic 

burglary under ACCA, and not to vehicles, watercraft, and 

the like, which would expand the state offense beyond the 

scope of generic burglary for purposes of ACCA. A Kentucky 

conviction for second-degree burglary thus falls within the 

scope of a burglary conviction under ACCA.

We agree with the reasoning of our colleagues in the Sixth 

Circuit. Even if Shepherd could overcome all of the procedural obstacles to his petition, he was properly sentenced under the Armed Career Criminal Act. The district court’s denial 

of Shepherd’s petition under 28 U.S.C. § 2241 is

AFFIRMED.