NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAM EUGENE MARTIN, 

Petitioner-Appellant, 

 v. 

KRIS KLINE, Warden, 

Defendant-Appellee.

No. 19-15605 

D.C. No. 4:17-cv-00371-JGZ 

MEMORANDUM

Appeal from the United States District Court

for the District of Arizona

Jennifer Zipps, District Judge, Presiding

Argued and Submitted December 7, 2021 

San Francisco, California

Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.

Adam Martin, a federal prisoner, petitioned the district court for habeas relief 

under 28 U.S.C. § 2241. The district court denied Martin’s petition, holding that it 

lacked jurisdiction to consider a petition brought under § 2241 because Martin did 

not meet the requirements set out in § 2255(e), known as the escape hatch provision. 

 This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Martin appeals the dismissal of his petition. We review the district court’s decision 

de novo, Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), and affirm. 

The district court correctly determined that Martin is not “actual[ly] 

innocen[t]” of his sentencing enhancement, and is thus ineligible for the escape 

hatch, because his Texas robbery conviction was a “serious violent felony” under § 

3559(c), and therefore was a valid predicate offense. Id. at 898. 

1. The Texas robbery statute Martin was convicted under is divisible, so we 

analyze whether it counts as a predicate offense under the modified categorical 

approach. See Rendon v. Holder, 764 F.3d 1077, 1084 (9th Cir. 2014); Syed v. Barr, 

969 F.3d 1012, 1017 (9th Cir. 2020). 

The “critical distinction” between indivisible and divisible statutes is that 

“while indivisible statutes may contain multiple, alternative means of committing 

the crime, only divisible statutes contain multiple, alternative elements of 

functionally separate crimes.” Rendon, 764 F.3d at 1084–85 (emphasis original). 

With an element of a crime, a jury “must unanimously agree,” while with the means 

of committing a crime a jury “may disagree yet still convict.” Id. at 1086; see also 

Richardson v. United States, 526 U.S. 813, 818 (1999). 

Here, the Texas robbery statute Martin was convicted under has two 

subsections: robbery by bodily injury, Tex. Penal Code § 29.02(a)(1), and robbery 

by threat, id. § 29.02(a)(2). While we acknowledge that Texas state courts have been 
3 

ambiguous as to whether these two subsections are alternative means or elements, 

see Cooper v. State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014); Burton v. State, 

510 S.W.3d 232, 237 (Tex. App. 2017), we conclude that the statute is divisible for 

three reasons. 

First, the statute sets forth different sets of mens rea elements for each version 

of robbery—“intentionally, knowingly, or recklessly” for robbery by bodily injury

and “intentionally and knowingly” for robbery by threat. A mens rea requirement is 

an element of a crime—not a means of committing a given crime. Indeed, “the 

general rule is that a guilty mind is a necessary element in the indictment and proof 

of every crime.” Elonis v. United States, 575 U.S. 723, 734 (2015) (simplified) 

(emphasis added). The inclusion of different sets of mens rea elements is strong 

evidence that the Texas robbery statute is divisible.

Second, Texas provides different sample jury instructions for robbery by 

threat and robbery by bodily injury. Compare Texas Crim. Jury Charges § 8:380, 

Robbery (Threats), with Texas Crim. Jury Charges § 8:370, Robbery (Bodily Injury). 

This suggests that robbery by threat and robbery by bodily injury are separate crimes 

within one statute. See Almanza-Arenas v. Lynch, 815 F.3d 469, 482 (9th Cir. 2016) 

(looking to state jury instructions to determine if a statute is divisible). 

Finally, “if state law fails to provide clear answers,” courts may take a “peek” 

at the record documents to determine if a statute is divisible. U.S. v. Mathis, 136 S. 
4 

Ct. 2243, 2256 (2016). Here, Martin’s information suggests that robbery by threat 

is a separate crime because it tracks § 29.02(a)(2) with no mention of the elements 

in § 29.02(a)(1). 

Taken together, the Texas robbery statute’s differing mens rea elements, 

differing jury instructions, and the charging documents establish that the statute is 

divisible and subject to analysis under the modified categorical approach.

 2. Applying the modified categorical approach, we conclude that Martin was 

convicted of robbery by threat—not robbery by bodily injury. Counts 1 and 2 of 

Martin’s felony information stated that Martin, “intentionally and knowingly, while 

in the course of committing theft of property and with intent to obtain and maintain 

control of said property, threaten and place [the victims] in fear of imminent bodily 

injury and death, and [Martin] did then and there use and exhibit a deadly weapon, 

to-wit [a] firearm.” Thus, according to the plain terms of the information, Martin 

was charged with “threaten[ing]” his victims—not causing them bodily injury. 

Moreover, as the government notes, the relevant documents do not indicate that any 

victim actually suffered physical injuries. As a result, the record demonstrates that 

Martin was convicted of robbery by threat. 

3. Robbery by threat is a valid predicate offense under 18 U.S.C. § 3559(c)

because it tracks the generic federal robbery crime. Compare Tex. Penal Code 

§ 29.02(a)(2), with 18 U.S.C. §§ 2111, 2113, 2118. Martin’s conviction was thus a 
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serious violent felony for purposes of § 3559(c)’s mandatory sentencing

enhancement and his actual innocence claim fails.1

AFFIRMED.

1 Because Martin’s actual innocence argument fails, we do not reach whether 

Martin had an unobstructed procedural shot to make his argument. Stephens, 464 

F.3d at 898.