# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 26, 2020 *

Decided August 27, 2020

Before

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 19

‐ 1112

QUINCY DARNELL BLUE,

Petitioner

‐ Appellant

,

v

.

ERIC WILLIAMS,

Respondent

‐ Appellee

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 17

‐ cv

‐ 1215

‐ DRH

David R. Herndon,

J udge

.

O R D E R

Quincy Blue seeks collateral relief from his criminal sentence. After a federal jury

in Kansas convicted Blue of bank robbery and using a firearm during a crime of

violence, see 18 U.S.C. §§ 924(c), 2113(a), the sentencing court ruled that he was a “career

offender.” For the predicate offenses, the court cited his prior state convictions, which

included two convictions for possessing drugs with intent to sell. He received a

* We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 19

‐ 1112 Page 2

sentence of 30 years’ imprisonment. After a failed appeal and two unsuccessful motions

for collateral relief under 28 U.S.C. § 2255, Blue now seeks relief under 28 U.S.C. § 2241.

He contends that he is entitled to relief under Mathis v. United States

, 136 S. Ct. 2243

(2016), as reflected by a Tenth Circuit decision that he says relied on Mathis to hold that

his drug crimes are not predicate offenses. The district court denied the § 2241 petition.

Because the Tenth Circuit decision relied on pre

‐ Mathis principles to hold that his drug

crimes are not predicates, Blue could have raised the same arguments in his original

motion under § 2255. He thus cannot use § 2241 to seek relief, so we affirm.

At the time of Blue’s robbery conviction in 2003, he had four prior Kansas felony

convictions: two for aggravated escape from custody, K AN

. S TAT

. A NN

. § 21

‐ 3810 (1993),

one for possessing cocaine with intent to sell

, id. § 65

‐ 4127a, and one for possessing

cocaine and marijuana with intent to sell

, id. §§ 65

‐ 4127a, 65

‐ 4127b. For career

‐ offender

status, the Sentencing Guidelines require two prior convictions of either “crimes of

violence” or “controlled substance offenses.” See U.S.S.G. § 4B1.2(b). The probation

office determined that Blue qualified because his two escape convictions were “crimes

of violence.” This subjected Blue to a then

‐ mandatory Guidelines range of 360 months

to life in prison. Had Blue not been a career

‐ offender, he would have faced a range of

only 144 to 165 months’ imprisonment. The court imposed the minimum sentence of

360 months. Blue appealed but did not challenge his career

‐ offender status, and the

Tenth Circuit affirmed. See United States v. Blue

, 122 F. App’x 427 (10th Cir. 2005).

Four years later, Blue filed a counseled motion under 28 U.S.C. § 2255,

contending that he was entitled to resentencing in light of Chambers v. United States

,

555 U.S. 122 (2009). Chambers had ruled that a defendant’s Illinois escape conviction did

not count as a “crime of violence,” and Blue argued that the same logic applied to his

Kansas escape convictions. See United States v. Blue

, Civ. No. 09

‐ 1108, 2009 WL 2581284

(D. Kan. Aug. 20, 2009). But the court denied his motion, concluding that Blue would

still qualify as a career offender even without the escape convictions because of his two

drug convictions. Id. Blue conceded that convictions under the Kansas drug statute

counted toward career

‐ offender status and did not appeal.

In 2016, Blue sought leave to file a successive motion under § 2255(h), relying on

Johnson v. United States

, 135 S. Ct. 2551 (2015), to contest again that his escape

convictions counted toward his career

‐ offender status. The Tenth Circuit denied leave

to file. It reasoned that because the postconviction court had not relied on Blue’s escape

convictions to deny his § 2255 motion, another case showing that his escape convictions

were not predicates would make no difference.No. 19

‐ 1112 Page 3

Finally, in 2017, Blue filed his current § 2241 petition in the Southern District of

Illinois, where he is incarcerated. This petition attacks the sentencing court’s reliance on

his two drug convictions. Blue contends that under Mathis, and as reflected in United

States v. Madkins

, 866 F.3d 1136 (10th Cir. 2017), those convictions are not “controlled

substance offenses.” The district court denied the petition. It explained that Blue could

not file a petition under § 2241 unless he relied on a decision that announced a new rule

of statutory interpretation, which applied retroactively and could not have been

invoked in his earlier petitions. The court concluded that Mathis did not declare a

“new” rule, it merely applied existing precedent.

Our resolution of Blue’s appeal centers on § 2255(e)’s so

‐ called “savings clause.”

In general, a federal prisoner wishing to attack his sentence collaterally must file a

§ 2255 motion in the district where he was convicted. Chazen v. Marske

, 938 F.3d 851, 856

(7th Cir. 2019). But under the savings clause, a prisoner may instead file a § 2241

petition in the district of incarceration if he can show that § 2255 is “inadequate or

ineffective” to test the legality of his detention. Id. To determine when § 2255 is

“inadequate or ineffective” we apply a three

‐ part test: the petitioner must show that

(1) he seeks relief based on a decision of statutory interpretation, (2) the decision

declares a rule that applies retroactively and which the prisoner could not have invoked

in his first § 2255 motion, and (3) relief is necessary to avoid a miscarriage of justice. Id

. If Blue cannot meet this test, his § 2241 petition must be denied. Id.

Blue’s petition fails to satisfy the second part of our savings

‐ clause test. Although

the case he relies on, Mathis

, 136 S. Ct. 2243, is about statutory interpretation, Blue does

not rely on any rule from it that he could not have invoked in his original motion under

§ 2255. To explain this conclusion, we first briefly review how courts determine whether

a state conviction is a predicate offense.

A defendant’s state conviction qualifies as a predicate offense if the state defines

the offense the same as (or more narrowly than) the Guidelines. United States v. Edwards

,

836 F.3d 831, 835 (7th Cir. 2016). To determine if a state conviction is a match, courts use

the “categorical approach” by “looking only to the statutory definitions of the prior

offenses, and not to the particular facts underlying those convictions.” Taylor v. United

States

, 495 U.S. 575, 600 (1990). (Cases like Taylor that apply the categorical approach to

the Armed Career Criminal Act are interchangeable with career

‐ offender Guidelines

cases. See Edwards

, 836 F.3d at 834 n.2). A state conviction is a predicate offense only if

the statutory elements of the offense necessarily encompass all the elements of the

Guidelines definition of the offense

. Id. at 835. If a statute is “divisible,” meaning it setsNo. 19

‐ 1112 Page 4

out one or more elements “in the alternative,” courts use the “modified categorical

approach.” Under this approach, courts may consult jury instructions, indictments, or

plea colloquies to determine under which alternative the defendant was convicted.

Descamps v. United States

, 570 U.S. 254, 257 (2013). But this approach applies only when

a statute includes alternative elements

, not alternative means of satisfying the same

element. Id. at 263. Some circuits (including the Tenth Circuit) did not adhere to this

elements/means distinction and applied the modified categorical approach to any

statute that listed alternative ways of committing a crime, even when it did not include

alternative elements. See Mathis

, 136 S. Ct. at 2251 n.1. So in Mathis

, the Supreme Court

reaffirmed the distinction. Specifically, the Court reiterated that (1) the modified

categorical approach applies only when a statute is divisible, and (2) a statute is not

divisible if it merely lists multiple means of satisfying the same element. Id. at 2253.

Blue’s petition does not depend on the element/means distinction that Mathis

reaffirmed. Nonetheless Blue believes that he could not have challenged the use of his

drug convictions as predicate offenses before Mathis

. For that belief he cites the Tenth

Circuit’s decision in Madkins, which he argues relied on Mathis to hold that Kansas’s

drug crimes of possession with intent to sell are not “controlled substance offenses.” But

in ruling that the Kansas’s definition for “intent to sell” punishes more conduct than its

Guidelines counterpart, Madkins did not rely on anything new in Mathis

. It cited Mathis

only for a restatement of pre

‐ existing law about the categorical approach, not for the

elements/means distinction. Madkins

, 866 F.3d at 1145

. Further, in holding that the

Kansas statute was divisible, Madkins applied the same modified categorical approach

that the Tenth Circuit would have used before Mathis

. Id. The Tenth Circuit simply had

not previously considered whether Kansas’s statute matched the Guidelines definition.

See id. (noting that issue was new). In short, Mathis did not expand Blue’s opportunity

for relief; he relies on Mathis only for rules of interpretation that were already available

to him when he filed his original petition. See, e.g., Taylor

, 495 U.S. at 602 (describing

modified categorical approach); Shepard v. United States

, 544 U.S. 13, 26 (2005) (same).

Similarly, we disagree with Blue’s contention that Mathis and Madkins overruled

other cases in the Tenth Circuit that foreclosed his argument. Blue seizes on a footnote

in Madkins, which he thinks established for the first time that courts should apply the

categorical or modified categorial approach to predicates for career

‐ offender status

under the Guidelines. See 866 F.3d at 1144 n.4. But the Tenth Circuit consistently applied

these approaches to career

‐ offender predicates, well before Madkins and Mathis

. See, e.g.,

United States v. Wise

, 597 F.3d 1141, 1144 (10th Cir. 2010); United States v. Charles

, 576

F.3d 1060, 1067 (10th Cir. 2009); United States v. Karam

, 496 F.3d 1157, 1166–67 (10th Cir.No. 19

‐ 1112 Page 5

2007). Blue argues that under United States v. Smith

, 433 F.3d 714 (10th Cir. 2006), his

§ 2255 petition was doomed because the Tenth Circuit would have considered his

conduct underlying his drug convictions, rather than just the elements of the offenses.

Yet Smith used the modified categorical approach, just as Madkins did, even if it did not

refer to the doctrine by name. See id

. at 718 (citing Shepard

, 544 U.S. 13, and Taylor

, 495

U.S. at 602) (focusing on the elements that defendant was charged with and pleaded

guilty to). Thus Smith did not foreclose Blue from advancing his current arguments.

Blue next argues that we granted relief to § 2241 petitioners under Mathis in two

cases: Beason v. Marske

, 926 F.3d 932, 935 (7th Cir. 2019), and Chazen

, 938 F.3d 851. But

neither case applies here, because, unlike Blue, those petitioners could not raise their

arguments in their § 2255 motions. In Beason

, which did not even rely on Mathis

, we

noted that the petitioner was previously foreclosed from raising his arguments under

the law

‐ of

‐ the

‐ case doctrine and concluded that intervening circuit precedent entitled

him to relief. 926 F.3d at 937. And in Chazen

, the petitioner could not obtain relief in his

original § 2255 motion in Minnesota because binding Eighth Circuit precedent, which

Mathis abrogated

, held that his prior conviction for Minnesota burglary counted as a

predicate offense under the Armed Career Criminal Act. Chazen

, 938 F.3d at 862.

Blue makes two additional arguments in favor of granting relief, but neither has

merit. First, he accuses the district judge who denied his § 2241 petition of improper ex

parte communications with the government. Blue points out that when the government

moved for an extension of time to respond to his petition, the Assistant United States

Attorney asked the court’s staff whether she should file a consolidated answer to Blue’s

petition and amended petition. But ex parte communications are permitted “for

scheduling, administrative, or emergency purposes” as long as they do “not address

substantive matters and the judge reasonably believes that no party will gain a

procedural, substantive, or tactical advantage as a result.” C ODE OF C ONDUCT FOR U.S.

J UDGES Canon 3(A)(4)(b); see also Drobny v. Comm’r

, 113 F.3d 670, 680 (7th Cir. 1997).

Because Blue cites no evidence of other communications between the government and

the court, nor evidence that this contact prejudiced him or involved the merits, the court

did not abuse its discretion by allowing its staff to answer it.

Second, Blue argues that denying him relief violates his right to equal protection

in two ways: (1) a different judge granted collateral relief to a different petitioner based

on what Blue argues were similar grounds, and (2) the government conceded issues in

that case that it refuses to concede here. The first argument fails because, among other

defects, nothing suggests that either decision was based on intentional discrimination, aNo. 19

‐ 1112 Page 6

predicate of an equal

‐ protection violation. Washington v. Davis

, 426 U.S. 229 (1976).

Similarly, on the second point, Blue cannot challenge the government’s prosecutorial

decisions because he lacks evidence of discrimination based upon invidious criteria

such as race or religion. See United States v. Moore

, 543 F.3d 891, 900 (7th Cir. 2008).

AFFIRMED