In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-3268 

TODD R. CHAZEN, 

Petitioner-Appellee, 

v.

MATTHEW MARSKE, 

Respondent-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Western District of Wisconsin. 

No. 3:17-cv-447 — James D. Peterson, Chief Judge. 

____________________ 

ARGUED FEBRUARY 8, 2019 — DECIDED SEPTEMBER 9, 2019 

____________________ 

Before FLAUM, BARRETT, and SCUDDER, Circuit Judges. 

SCUDDER, Circuit Judge. A federal jury in Minnesota convicted Todd Chazen of possessing a firearm following a prior 

felony conviction. The district court then sentenced Chazen 

pursuant to the Armed Career Criminal Act, which mandates 

a minimum 15-year sentence for a defendant who unlawfully 

possesses a firearm and has three prior convictions for a serious drug offense or violent felony. After an unsuccessful direct appeal and petition for post-conviction relief under 
2 No. 18-3268 

28 U.S.C. § 2255, Chazen turned to 28 U.S.C. § 2241 and 

sought a writ of habeas corpus, arguing that the application 

of a recent Supreme Court decision shows he no longer qualifies as an armed career criminal and is entitled to a lesser sentence. The district court agreed and granted habeas relief. We 

affirm. 

I 

A. Chazen’s Sentencing and Direct Appeal 

Following a 2011 trial in the District of Minnesota, a jury 

convicted Todd Chazen of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). While this offense 

ordinarily carries a ten-year maximum sentence, 18 U.S.C. 

§ 924(a)(2), the district court considered whether Chazen 

qualified for an enhanced sentence under the Armed Career 

Criminal Act.

The Act mandates a 15-year minimum sentence if a defendant has three or more prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). The Act 

defines violent felony as any federal or state felony that “has 

as an element the use, attempted use, or threatened use of 

physical force against the person of another” (the elements 

clause) or is “burglary, arson, or extortion” (the enumerated 

offenses clause). Id. § 924(e)(2)(B). At the time of Chazen’s sentencing, the definition also included a residual clause, which 

encompassed any felony that “otherwise involves conduct 

that presents a serious potential risk of physical injury to another.” Id. In Johnson v. United States, the Supreme Court held 

the residual clause void for vagueness. 135 S. Ct. 2551, 2557 

(2015). 
No. 18-3268 3

Chazen has five felony convictions under Minnesota law: 

second-degree assault; second-degree manufacture of a controlled substance; escape from custody; and two convictions 

for second-degree burglary. At sentencing the government 

conceded that because Chazen’s two burglary convictions occurred on the same day and involved the same course of conduct, they should not be counted as separate predicate convictions under the Armed Career Criminal Act. The government further conceded that Chazen’s controlled substances 

conviction did not qualify as a serious drug offense within the 

meaning of the Act. But it nonetheless advocated for an enhanced sentence on the basis of Chazen’s three remaining 

convictions—for assault, escape, and burglary. For his part, 

Chazen agreed that one of his burglary convictions and his 

assault conviction were qualifying felonies, but argued that 

he was not an armed career criminal because his escape conviction did not count as a violent felony predicate. 

The district court in Minnesota sided with the government 

and sentenced Chazen to 21 years’ imprisonment. In doing so, 

the court did not specify which convictions qualified Chazen 

as an armed career criminal, noting only that “there [were] a 

number of possibilities” and finding (without further elaboration) that Chazen had “at least four” predicates. 

On direct appeal in the Eighth Circuit, Chazen challenged 

his enhanced sentence, arguing that the district court erred by 

concluding that his Minnesota escape conviction was a qualifying felony under the Armed Career Criminal Act’s residual 

clause. Relying on the government’s concessions at sentencing, he maintained that without the improper consideration 

of his escape conviction, he no longer had three qualifying offenses. The government responded by withdrawing its 
4 No. 18-3268 

concessions about Chazen’s burglary convictions and his 

drug conviction, asserting that any error with his escape conviction was harmless because, even without it, at least three 

qualifying convictions remained. It also contended that Chazen’s escape argument was directly foreclosed by Eighth Circuit precedent. The Eighth Circuit agreed with the government and affirmed Chazen’s sentence, concluding that the escape conviction qualified as a predicate under the Act’s residual clause. See United States v. Chazen, 469 F. App’x 508, 509 

(8th Cir. 2012). 

B. Chazen’s § 2255 Petitions 

In 2013, Chazen invoked 28 U.S.C. § 2255 and petitioned 

for post-conviction relief in the District of Minnesota, again 

challenging his classification as an armed career criminal. 

Chazen persisted in his contention that the sentencing court 

erred in determining that his escape conviction qualified as a 

violent felony predicate. He also argued that the court was 

unable to rely on his drug conviction or one of his burglary 

convictions given the government’s concessions at sentencing. The district court denied relief, concluding that the escape conviction qualified as a violent felony and finding Chazen’s other arguments procedurally defaulted. 

Two years after Chazen’s unsuccessful § 2255 petition, the 

legal landscape shifted. First, the Supreme Court held that the 

Act’s residual clause was unconstitutionally vague. See Johnson, 135 S. Ct. at 2557. Because Chazen’s escape conviction 

was a residual-clause offense, he sought authorization from 

the Eighth Circuit to file a second § 2255 petition for post-conviction relief. He simultaneously proceeded to file a second 

§ 2255 petition in the sentencing court (the District of Minnesota), arguing that because Johnson knocked out his escape 
No. 18-3268 5

conviction, he no longer qualified as an armed career criminal. The government agreed that Chazen’s escape conviction 

no longer qualified as a predicate following Johnson. But the 

government maintained that Chazen still had the three strikes 

requisite to qualify as an armed career criminal owing to his 

Minnesota assault conviction and two burglary convictions. 

In May 2016, the Eighth Circuit summarily denied Chazen’s 

application to file a second § 2255 petition. The Minnesota district court then concluded it lacked jurisdiction to consider his 

§ 2255 petition. 

C. Chazen’s § 2241 Petition 

The landscape shifted a second time in June 2016, when 

the Supreme Court decided Mathis v. United States, 136 S. Ct. 

2243. Mathis was meaningful because it narrowed the range 

of state statutes that qualify as violent felony predicates under 

the Armed Career Criminal Act. Seeing this development, 

Chazen again pursued post-conviction relief, this time by filing a petition under 28 U.S.C. § 2241 in the Western District of 

Wisconsin, where he is serving his sentence. 

In response to this new petition, the parties agreed that, 

due to intervening changes in the law, only three of Chazen’s 

prior Minnesota convictions potentially qualified him as an 

armed career criminal: his second-degree assault conviction 

and his two second-degree burglary convictions. Relying on 

Mathis, Chazen argued that his burglary convictions no 

longer counted as violent felonies under the Act’s enumerated 

offense clause. He also pointed to the Eighth Circuit’s decision 

in United States v. McArthur, 850 F.3d 925, 940 (8th Cir. 2017), 

which held that the Minnesota crime of third-degree burglary 

no longer qualifies as a predicate under the Act after the Supreme Court’s decision in Mathis. 
6 No. 18-3268 

Another legal development occurred in 2018. While Chazen’s § 2241 petition was pending in the district court (in the 

Western District of Wisconsin, where he is confined), this 

court joined the Eighth Circuit in holding that because the 

Minnesota burglary statute covers more conduct than generic 

burglary, it does not qualify as a predicate violent felony under the Act. See Van Cannon v. United States, 890 F.3d 656, 665 

(7th Cir. 2018). We reached this conclusion with respect to second-degree burglary, but the parties agree that for purposes 

of this appeal, there is no meaningful distinction between second- and third-degree burglary under Minnesota law. 

Relying on both Mathis and Van Cannon, the district court 

granted Chazen’s § 2241 petition, concluding that his burglary convictions no longer qualified as violent felony predicates. This left Chazen with only one qualifying predicate (his 

Minnesota assault conviction), which was not enough for an 

enhanced sentence under the Act. Accordingly, the district 

court ordered resentencing. 

As part of affording Chazen habeas relief under § 2241, the 

district court took care to address a procedural point that defines much of the battleground in this appeal. The court determined that relief was available to Chazen under § 2241 because, at the time of his original § 2255 petition in 2013, Eighth 

Circuit precedent foreclosed any contention that his two prior 

Minnesota burglary convictions did not qualify as violent felony predicates under the Act. Being foreclosed like this meant 

that, following Mathis, Chazen was able through the so-called 

savings clause in § 2255(e) to pursue relief pursuant to § 2241. 

In granting relief, the district court (in Wisconsin) transferred Chazen’s case back to the District of Minnesota (the 
No. 18-3268 7

district of conviction) for resentencing. The government now 

appeals. 

II 

At this point, all agree that the validity of Chazen’s sentence under the Armed Career Criminal Act depends on 

whether his two prior Minnesota burglary convictions qualify 

as generic burglary under the Act’s enumerated offense 

clause. They take different positions on the merits of that 

question while also spilling substantial ink on the very knotty 

procedural issue of whether Chazen can pursue relief under 

§ 2241. The complexity of the procedural question is staggering. 

A. The Savings Clause and § 2241 

As a general rule, a federal prisoner wishing to collaterally 

attack his conviction or sentence must do so under § 2255 in 

the district of conviction. See Light v. Caraway, 761 F.3d 809, 

812 (7th Cir. 2014). If, however, § 2255 is “inadequate or ineffective to test the legality of [the prisoner’s] detention,” relief 

may be granted under § 2241, the general federal habeas corpus statute, in the district of incarceration. 28 U.S.C. § 2255(e); 

see also Light, 761 F.3d at 812. In In re Davenport, we examined 

the scope of this provision, known as the “savings clause,” 

and concluded that whether § 2255 was “inadequate or ineffective” turns on whether a petitioner had “a reasonable opportunity [in a prior § 2255 proceeding] to obtain a reliable 

judicial determination of the fundamental legality of his conviction and sentence.” 147 F.3d 605, 609 (7th Cir. 1998); see 

also Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (en 

banc) (reiterating that Davenport is the law of this circuit). In 

considering Chazen’s appeal, we are bound by Davenport. 
8 No. 18-3268 

In Davenport’s wake, we have established a three-part test 

to determine whether a petitioner satisfies § 2255(e)’s savings 

clause. See, e.g., Montana v. Cross, 829 F.3d 775, 784 (7th Cir. 

2016). To pursue relief under § 2241, a petitioner must establish that “(1) the claim relies on a statutory interpretation case, 

not a constitutional case, and thus could not have been invoked by a successive § 2255 motion; (2) the petitioner could 

not have invoked the decision in his first § 2255 motion and 

the decision applies retroactively; and (3) the error is grave 

enough to be deemed a miscarriage of justice.” Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019). 

Everyone agrees that Chazen satisfies the first and third 

requirements. On the first prong, Chazen argues that the direction recently provided by the Supreme Court in Mathis—a 

decision interpreting the Armed Career Criminal Act—means 

that his Minnesota burglary convictions no longer qualify as 

violent felonies. And, as to the third prong for pursuing relief 

under § 2241, we have held that a defendant sentenced in error as an armed career criminal satisfies the “miscarriage of 

justice” requirement. See Light, 761 F.3d at 813. 

The disagreement comes on the middle prong of the savings clause test and whether Chazen was foreclosed in his 

prior § 2255 petition from asserting the claim he now raises. 

This question cannot be answered without evaluating the 

state of the law at that time and how it has changed. In this 

way, then, substance and process bleed together. Our analysis 

proceeds in two steps. First, we assess whether his seconddegree burglary convictions under Minnesota law no longer 

qualify as violent felonies in light of Mathis. Second, we consider whether the law in place at the time of his prior § 2255 

petition foreclosed the Mathis-based argument he now 
No. 18-3268 9

advances to challenge his enhanced sentence. Chazen is entitled to relief under § 2241 only if he can get to yes on both 

questions. 

B. “Violent Felony” Under the Act 

Recall that the Armed Career Criminal Act includes “burglary” in its list of enumerated violent felonies. See 

§ 924(e)(2)(B)(ii). While the statute does not define the offense, 

the Supreme Court has held that Congress used “burglary” to 

refer to the generic version of the crime, meaning “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 determine whether a prior conviction meets this definition, Taylor instructed courts to use what is known as the 

“categorical approach” by “look[ing] only to the statutory 

definitions of the prior offenses, and not to the particular facts 

underlying those convictions.” Id. at 600. If the statute under 

which a defendant was previously convicted “substantially 

corresponds” to or is narrower than Taylor’s generic definition, the conviction qualifies as a violent felony under the Act. 

Id. at 602. Put another way, “[a] crime counts as ‘burglary’ under the Act if its elements are the same as, or narrower than, 

those of the generic offense.” Mathis, 136 S. Ct. at 2248. But if 

“the statute sweeps more broadly than the generic crime, a 

conviction under that law cannot count as an [Armed Career 

Criminal Act] predicate, even if the defendant actually committed the offense in its generic form.” Descamps v. United 

States, 570 U.S. 254, 261 (2013). 

In so interpreting the Act, the Supreme Court has recognized a “narrow range of cases” in which sentencing courts 
10 No. 18-3268 

are permitted to look beyond the statute of conviction to determine whether a prior conviction meets Taylor’s generic definition of burglary. Taylor, 495 U.S. at 602. If a statute is divisible—meaning it “sets out one or more elements of the offense 

in the alternative”—courts may apply the so-called “modified 

categorical approach.” Descamps, 570 U.S. at 257. Under this 

approach, a sentencing court may “consult a limited class of 

documents, such as indictments or jury instructions, to determine which alternative formed the basis of the defendant’s 

prior conviction,” id., “but only for the limited purpose of determining whether the elements of the crime of conviction 

match (or are narrower than) the elements of the generic offense.” Van Cannon, 890 F.3d at 663. 

The Supreme Court has underscored an important qualifier: the modified categorical approach applies only to divisible statutes. The approach does not apply if a statute is indivisible—where the statute of conviction does not contain alternative elements, but rather “a single, ‘indivisible’ set of elements sweeping more broadly than the corresponding generic offense.” Descamps, 570 U.S. at 260. When faced with a 

statute that “defines a single offense, albeit one with multiple 

modes of conviction,” a sentencing court is confined to the 

statutory elements and therefore cannot rely on any documents from a defendant’s criminal case or otherwise embark 

on fact finding to discern the defendant’s actual offense conduct. Van Cannon, 890 F.3d at 663. If the analysis shows that 

“the alternative means listed in an indivisible statute cover a 

broader swath of conduct than the generic offense, then a conviction under the statute doesn’t count as an [Armed Career 

Criminal Act] predicate.” Id. 
No. 18-3268 11

The legal upshot, then, is that the question of whether a 

court may employ the modified categorical approach to an 

overbroad statute turns on the issue of divisibility. In the aftermath of Taylor and Descamps, lower courts grappled with 

how to determine whether a statute is divisible, a distinction 

that hinges on the often subtle and hairline difference between elements and means. See Najera-Rodriguez v. Barr, 

926 F.3d 343, 348 (7th Cir. 2019) (“The difference between ‘elements’ and ‘means’ can seem slippery, sometimes almost 

metaphysical, but significant legal consequences flow from 

that difference.”). 

Adding to the ambiguity, some circuits interpreted a footnote in Descamps to permit sentencing courts to continue to 

apply the modified categorical approach—by reviewing the 

record of conviction—whenever a statute lists alternative 

ways to commit a crime, even if the alternatives were means 

rather than elements. See Descamps, 570 U.S. at 264 n.2 (noting 

that “[w]hatever a statute lists (whether elements or means), 

the documents we approved in Taylor and Shepard—i.e., indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime’s elements”). The Eighth Circuit, for example, read Descamps as “explicitly reject[ing]” any 

“means/elements distinction,” and cited footnote 2 for the 

proposition that courts “must apply the modified categorical 

approach” whether a statute listed alternative elements or alternative means. United States v. Mathis, 786 F.3d 1068, 1074, 

1075 (8th Cir. 2015), rev’d, 136 S. Ct. 2243 (2016). While the 

Sixth and Tenth Circuits adopted the same approach, see, e.g., 

United States v. Ozier, 796 F.3d 597, 600 (6th Cir. 2015); United 

States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014), other circuits reached a contrary conclusion. See, e.g., Rendon v. Holder, 

764 F.3d 1077, 1086 (9th Cir. 2014) (citing Descamps for the 
12 No. 18-3268 

precept that “it is black-letter law that a statute is divisible 

only if it contains multiple alternative elements, as opposed to 

multiple alternative means”); Omargharib v. Holder, 775 F.3d 

192, 198 (4th Cir. 2014) (explaining that “a crime is divisible 

under Descamps only if it is defined to include multiple alternative elements (thus creating multiple versions of a crime), as 

opposed to multiple alternative means (of committing the 

same crime)”). 

None of this is surprising. The law in this area is complex 

in the extreme; unexpected difficulties and nuances surface in 

new cases; and it often takes the Supreme Court deciding additional cases for clarity and stability to begin to emerge. Law 

develops iteratively like this in many areas, which is exactly 

what Chazen saw happen here. 

To that end, in Mathis v. United States, the Supreme Court 

granted review to clarify when a statute qualifies as “divisible” and to resolve the circuit split that had developed over 

the “elements” versus “means” distinction in the context of 

predicate offenses under the Armed Career Criminal Act. See 

136 S. Ct. at 2251. 

At issue in Mathis was whether Iowa’s burglary statute 

qualified as a violent felony predicate. See id. at 2250. The parties agreed that the statute extended to conduct beyond generic burglary because it criminalized unlawful entry into a 

broader range of places, including “any building, structure, 

[or] land, water, or air vehicle.” Id. (quoting Iowa Code 

§ 702.12 (2013)). The debate centered on whether the sentencing court erred in consulting Mathis’s conviction records to 

determine which type of burglary he committed and, relatedly, whether the different locations in the Iowa statute 

amounted to alternative means or alternative elements. See id. 
No. 18-3268 13

On this latter question, the Eighth Circuit had concluded this 

was a distinction without a difference, explaining that 

“[w]hether [the different locations] amount[ed] to alternative 

elements or merely alternative means to fulfilling an element, 

the statute is divisible, and [the court] must apply the modified categorical approach.” Mathis, 786 F.3d at 1075. In so 

holding, the Eighth Circuit added to the circuit split rooted in 

confusion about what makes a statute divisible for purposes 

of applying the modified categorical approach. 

The Supreme Court resolved the split by rejecting the 

Eighth Circuit’s approach—which other courts had also 

adopted—and held that the modified categorical approach is 

unavailable when, as with the Iowa law, a statute lists multiple “means” to satisfy just one element. Mathis, 136 S. Ct. at 

2253. In reaching this conclusion, the Court stressed that 

“[d]istinguishing between elements and facts is ... central to 

[the Act’s] operation,” id. at 2248, because if a statute lists alternative means (rather than elements) it is not divisible, and, 

as a consequence, a court may not rely on the modified categorical approach to determine which of the alternatives 

formed the basis of a defendant’s conviction. See id. at 2257. 

Instead, the Court explained, the sentencing court is confined 

to the text of the statute and if, as with burglary under Iowa 

law, any of the alternative means of satisfying a statutory element is broader than generic burglary, the conviction cannot 

qualify as a predicate under the Armed Career Criminal Act. 

See id. at 2248. 

The Court also provided guidance for distinguishing between elements and means, explaining that “elements” are a 

crime’s “constituent parts,” which a jury must find beyond a 

reasonable doubt or a defendant must admit if he pleads 
14 No. 18-3268 

guilty. Id. at 2248. “Means,” on the other hand, are merely 

“various factual ways of committing some component of the 

offense—a jury need not find (or a defendant admit)” them. 

Id. at 2249. A prior conviction counts as generic burglary under the Act only if its elements—not the means of satisfying 

the elements—are the same as or narrower than the generic 

definition of burglary. See id. at 2256. 

C. Chazen’s Minnesota Burglary Convictions 

Returning to the facts here, Chazen argues that his Minnesota second-degree burglary convictions no longer qualify as 

“violent felonies” in light of Mathis. We recently considered 

the Minnesota burglary statute in Van Cannon v. United States

and reached this exact conclusion. 890 F.3d 656, 665 (7th Cir. 

2018). 

Our analysis proceeded within the framework the Supreme Court supplied in Mathis. We first considered whether 

the statute contained alternative elements—in which case the 

statute is divisible, and the modified categorical approach is 

available—or alternative means of committing a single element—which ends the inquiry. The Minnesota legislature defined second-degree burglary this way: “Whoever enters a 

building without consent and with intent to commit a crime, 

or enters a building without consent and commits a crime while in 

the building, either directly or as an accomplice, commits burglary in the second degree” if certain aggravating factors are 

present. Minn. Stat. § 609.582(2)(a) (emphasis added). We concluded that “[t]he disjunctive phrasing describes two different factual ways”—or means—“of committing a single 

crime,” meaning the statute is indivisible. Van Cannon, 890 

F.3d at 664. “Because the statute is indivisible,” we explained, 

“a conviction under it does not count as an [Armed Career 
No. 18-3268 15

Criminal Act] predicate if one of the listed alternatives is 

broader than generic burglary.” Id. 

We concluded that the Minnesota statute contained such 

overbreadth. Specifically, we determined that while the first 

alternative qualifies as generic burglary—a person commits 

second-degree burglary if he “enters a building without consent and with intent to commit a crime,” Minn. Stat. 

§ 609.582(2)(a)—the second alternative criminalizes conduct 

that is broader than Taylor’s definition of generic burglary because it “doesn’t require proof of intent to commit a crime at 

all—not at any point during the offense conduct.” Id. (emphasis in the original). 

After Van Cannon, then, our law is clear that a conviction 

for Minnesota second-degree burglary does not qualify as a 

predicate violent felony under the Armed Career Criminal 

Act. Nothing about this appeal requires us to revisit that holding. 

But we do need to take a breath and address a procedural 

point. Remember that Chazen committed his felon-in-possession offense and was convicted and sentenced in the District 

of Minnesota—in other words, within the Eighth Circuit. But 

he is currently incarcerated in the Western District of Wisconsin—in our circuit. These locations matter, for it is well-established that if relief under § 2241 is available at all, it must be 

sought in the district of incarceration. See Light, 761 F.3d at 

812. Here, then, that means Chazen had to file his § 2241 petition in a district court in this circuit, which he did by going to 

the Western District of Wisconsin. What is less clear, however, 

is whether, in evaluating the merits of Chazen’s petition, we 

should apply our own precedent or the precedent of the circuit of conviction. See Shepherd v. Krueger, 911 F.3d 861, 863 
16 No. 18-3268 

(7th Cir. 2018) (explaining that the parties debate “whether 

§ 2241 should be available to [petitioner] at all, and if so 

whether this court should apply our own precedent or Sixth 

Circuit precedent,” but “elect[ing] to bypass these procedural 

hurdles for relief because this case can be resolved most 

simply on the merits”). 

We need not decide this issue here because the government took the position in the district court that the law of this 

circuit governs the merits of Chazen’s claim. See, e.g., Prevatte 

v. Merlak, 865 F.3d 894, 898, 901 (7th Cir. 2017) (accepting the 

government’s concession on an element of the savings clausetest and explaining that § 2241 and § 2255 address remedies, 

not jurisdiction). Given this concession, we see no reason why 

our holding in Van Cannon does not resolve the merits of Chazen’s claim. 

Our course of analysis is unaffected by the Supreme 

Court’s most recent decision in Quarles v. United States, 139 S. 

Ct. 1872 (2019). In Quarles, the Court considered the “exceedingly narrow question” whether Taylor’s definition of generic 

burglary requires proof that a defendant intended to commit 

a crime at the time he unlawfully entered, or instead whether 

it is sufficient that he formed the intent to commit a crime at 

some point while unlawfully “remaining in” the building or 

structure. Id. at 1875. The Court held that “generic remainingin burglary occurs under § 924(e) when the defendant forms 

the intent to commit a crime at any time while unlawfully remaining in a building or structure.” Id. at 1880. As the government has pointed out in its supplemental briefing, this holding may well abrogate the Eighth Circuit’s decision in McArthur, which rested on the “contemporaneous intent” reasoning rejected in Quarles. See McArthur, 850 F.3d at 939. But the 
No. 18-3268 17

Eighth Circuit has not resolved this question. See Raymond v. 

United States, No. 18-2349, 2019 WL 3783103, at *3 (8th Cir. 

Aug. 13, 2019) (observing without deciding that the Supreme 

Court’s decision in Quarles may have abrogated McArthur). 

What we can say with confidence is that Quarles did not 

abrogate Van Cannon’s conclusion that Minnesota burglary is 

broader than generic burglary because the state statute does 

not require proof of any intent at any point. Indeed, the Court 

expressly declined to address this issue in Quarles. See 139 S. 

Ct. at 1880 n.2. 

What all of this means, then, is that Chazen’s Minnesota 

burglary convictions no longer qualify as violent felony predicates under the reasoning of Van Cannon. And with there being no contrary law in the Eighth Circuit, we believe Chazen 

has done enough to show that he no longer qualifies as an 

armed career criminal. 

D. Chazen’s Eligibility for § 2241 Relief 

Reaching this conclusion on the merits of Chazen’s claim, 

however, is not the end of the inquiry. The reason is because 

Chazen is pursuing relief under § 2241 and his ability to do so 

depends on establishing that he was unable in his prior § 2255 

proceedings to advance the arguments he now raises to challenge his sentence. See Beason, 926 F.3d at 935 (explaining the 

requirements for pursuing relief under § 2241 via the savings 

clause in § 2255(e)). On this point, the analysis encounters yet 

additional complexity. 

The government insists that Chazen cannot rely on the 

savings clause to pursue relief under § 2241 because his claim 

does not rely on a “new, retroactive rule.” Gov’t Br. at 16. In 

its view, because Mathis did not announce a substantive 
18 No. 18-3268 

change in the law, but rather clarified the circumstances under the Armed Career Criminal Act in which a sentencing 

court may apply the modified categorical approach, Chazen 

could have raised his arguments about Minnesota’s burglary 

statute in his initial § 2255 petition by relying on pre-Mathis 

Supreme Court decisions like Taylor and Descamps. As the 

government sees it, then, because Chazen was not foreclosed 

from raising these arguments in his initial collateral attack, he 

cannot now bring his claims under § 2241. 

As an initial matter, the government conceded in the district court that Mathis is retroactive. We have likewise suggested (without deciding) that Mathis is retroactive. See Holt 

v. United States, 843 F.3d 720, 722 (7th Cir. 2016) (observing 

that “substantive decisions such as Mathis presumptively apply retroactively on collateral review”). But assessing the remainder of the government’s position—that Chazen may not 

rely on Mathis because it did not announce a “new rule”—is 

complicated by the fact that we have not been consistent in 

our articulation of the second requirement of the savingsclause test. While we have repeatedly stressed that a petitioner seeking to invoke the savings clause must establish that 

he was unable to raise his statutory claim at the time of his 

original § 2255 petition—thus showing that § 2255 was “inadequate or ineffective to test the legality of [the prisoner’s] detention”—we have “employed various formulations of this 

inquiry.” Montana, 829 F.3d at 784. In some instances, we have 

said that satisfying this condition requires a petitioner to 

show that he is relying on a “new rule” that applies “retroactively to cases on collateral review and could not have been 

invoked in his earlier proceeding.” Camacho v. English, 872 

F.3d 811, 813 (7th Cir. 2017); see also Davis v. Cross, 863 F.3d 

962, 964 (7th Cir. 2017) (same); Prevatte, 865 F.3d at 897 (same). 
No. 18-3268 19

Yet we have never explained what “new” means or requires 

in this context. 

In other instances, we have articulated the requirement for 

satisfying the savings clause, not in terms of a “new rule,” but 

rather in terms of whether the petitioner “relies on a retroactive decision that he could not have invoked in his first § 2255 

motion.” Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); 

see also Beason, 926 F.3d at 935 (same); Poe v. LaRiva, 834 F.3d 

770, 772–73 (7th Cir. 2016) (same); Light, 761 F.3d at 812–13; 

Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). More to it, we 

have held that a petitioner seeking relief under § 2241 need 

only show that the case on which he relies had not yet been 

decided at the time of his § 2255 petition. See, e.g., Rios, 696 

F.3d at 640. Under this formulation, Chazen would meet the 

second criteria because the Supreme Court decided Mathis 

two years after his initial § 2255 petition. 

In still other cases, we have employed a “slightly higher 

standard,” requiring a petitioner to show not only that he relies on a newly decided case of statutory interpretation, but 

also that, at the time of his initial § 2255 petition, his claim was 

“foreclosed by binding precedent” in the circuit of his conviction. Brown, 719 F.3d at 595 (quoting Hill v. Werlinger, 695 F.3d 

644, 648 (7th Cir. 2012)). And most recently we have explained 

that “if it ‘would have been futile’ for a petitioner to raise 

these arguments in his § 2255 motion because the ‘law was 

squarely against him,’ then the savings clause applies and [a 

petitioner] may proceed and pursue resentencing under 

§ 2241.” Beason, 926 F.3d at 936 (quoting Webster, 784 F.3d at 

1136). 

Stepping back, we can plant our feet in this appeal on easier ground. There is no doubt that at the time of Chazen’s 
20 No. 18-3268 

§ 2255 motion in 2013, his claim for relief was foreclosed by 

Eighth Circuit precedent concluding that Minnesota burglary 

qualified as a violent felony for federal sentencing purposes. 

See United States v. LeGrand, 468 F.3d 1077 (8th Cir. 2006). In 

LeGrand the Eighth Circuit had held that the Minnesota burglary statute “includes the elements of a generic burglary as 

outlined in Taylor.” Id. at 1081–82. LeGrand also held that the 

statute fit within the Act’s residual clause because “burglary 

always has a ‘serious potential risk of physical injury to another.’” Id. at 1082 (quoting United States v. Mohr, 407 F.3d 898, 

901 (8th Cir. 2005)). While LeGrand assessed the statute in the 

context of the Sentencing Guidelines definition of a “crime of 

violence,” the Eighth Circuit treated cases on one as binding 

on the other. See United States v. Sonczalla, 561 F.3d 842, 846 

(8th Cir. 2009) (applying LeGrand’s analysis of the Sentencing 

Guidelines to the Armed Career Criminal Act’s language). 

And in 2012, the Eighth Circuit reiterated its conclusion that 

Minnesota burglary qualifies as a “violent felony” for purposes of the Act. See United States v. Constantine, 674 F.3d 985, 

990 (8th Cir. 2012). In short, in 2013—at the time Chazen first 

moved for post-conviction relief under § 2255—“the law was 

squarely against” him in that it foreclosed the position he currently advances—that Minnesota burglary is not a violent felony under the Act. 

We also conclude that Mathis can provide the basis for 

Chazen’s § 2241 petition. While our caselaw is not a model of 

clarity with respect to whether a petitioner must rely on a 

“new rule,” the thrust of our precedent has focused on 

whether an intervening case of statutory interpretation opens 

the door to a previously foreclosed claim. Mathis fits the bill. 

Mathis injected much-needed clarity and direction into the 

law under the Armed Career Criminal Act: before Mathis, the 
No. 18-3268 21

Eighth Circuit had held that Minnesota burglary was a violent 

felony and it applied the modified categorical approach regardless of whether a statute listed distinct elements or alternative means. See, e.g., Mathis, 786 F.3d at 1075. It is only after

Mathis—a case decided after Chazen’s § 2255 petition that the 

government concedes is retroactive—that courts, including 

our court and the Eighth Circuit, have concluded that Minnesota burglary is indivisible because it lists alternative means 

of committing a single crime. See Van Cannon, 890 F.3d at 664; 

McArthur, 850 F.3d at 938. 

In this way, Mathis is “new” as a functional and practical 

matter for federal inmates seeking relief from a mandatory 

minimum sentence under the Act. This is particularly true for 

those petitioners, like Chazen, who were convicted in the 

Eighth Circuit, whose interpretation of “divisibility” was 

overruled by Mathis. See, e.g., Brown v. United States, 929 F.3d 

554, 559 (8th Cir. 2019) (explaining that pre-Mathis cases holding that a conviction under the Armed Career Criminal Act 

qualifies as a violent felony are no longer controlling because 

“[c]ontrary to the approach [the Eighth Circuit] took in those 

decisions, Mathis clarified that if any of the means by which a 

defendant can commit a crime fall outside the definition of the 

generic offense, then it is not a violent felony, even if the defendant actually committed the generic crime”). 

Before Mathis it would have been futile for Chazen to argue that his Minnesota burglary convictions did not qualify 

as violent felonies. It was only after the Supreme Court decided Mathis that Chazen had any daylight to seek relief by 

raising the claim embodied in his § 2241 petition. In these circumstances, where the government has conceded that Mathis 

is retroactive and Chazen was so clearly foreclosed by the law 
22 No. 18-3268 

of his circuit of conviction at the time of his original § 2255 

petition, we conclude that Chazen has done enough to satisfy 

the savings clause requirements. This conclusion finds support in our prior observation that “[a]n independent claim 

based on Mathis must be brought, if at all, in a petition under 

28 U.S.C. § 2241.” Dawkins v. United States, 829 F.3d 549, 551 

(7th Cir. 2016). And in light of our prior decision in Van Cannon, it is clear that Chazen’s two Minnesota burglary convictions no longer qualify as predicates under § 924(e). 

III 

For these reasons, we AFFIRM the district court’s judgment awarding Chazen habeas relief under 28 U.S.C. § 2241. 
No. 18-3268 23 

BARRETT, Circuit Judge, concurring. I join the panel’s 

opinion because it has support in our precedent. I write 

separately, though, to express concern about the state of our 

precedent. As the opinion observes, the complexity of our 

cases in this area is “staggering.” We have stated the “saving 

clause” test in so many different ways that it is hard to 

identify exactly what it requires. And the resulting confusion 

has caused our law to drift beyond the course we set in In re 

Davenport. See 147 F.3d 605, 611 (7th Cir. 1998). At this point, 

our definition of “inadequacy” and “ineffectiveness” under 

§ 2255(e) undermines the limits that § 2255(h) imposes on 

second or successive motions. Our patch for statutory cases 

has grown larger than the hole we identified in the statute. 

Davenport aims to fix a “glitch” in § 2255(h)(2). See Brown 

v. Caraway, 719 F.3d 583, 587 n.1 (7th Cir. 2013) (quoting 

Unthank v. Jett, 549 F.3d 534, 536 (7th Cir. 2008)). That 

provision permits a prisoner to bring a second or successive 

challenge to his detention if the motion is based on “a new 

rule of constitutional law, made retroactive to cases on 

collateral review by the Supreme Court, that was previously 

unavailable.” This permission does not apply, however, to a 

second or successive motion based on a new statutory 

interpretation—perhaps because of a congressional oversight. 

As one noted treatise explains, Congress appears to have 

modeled § 2255(h)(2) on § 2244(b), which governs second and 

successive collateral attacks by state prisoners. HART &

WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM

1362 (Richard H. Fallon Jr. et al. eds., 7th ed. 2015). But 

“Congress seems to have lost sight of the fact that federal 

convicts more often can raise federal statutory claims in their 

collateral attacks—notably in cases in which the federal 

criminal statute under which a prisoner was convicted has 
24 No. 18-3268 

since been authoritatively interpreted more narrowly.” Id. 

Davenport holds that § 2255’s failure to provide a federal 

prisoner “any opportunity for judicial rectification of so 

fundamental a defect in his conviction as having been 

imprisoned for a nonexistent offense” renders § 2255 

“inadequate” or “ineffective” for purposes of § 2255(e)’s 

saving clause. 147 F.3d at 611. Thus, a prisoner in that 

situation can seek a writ of habeas corpus under § 2241. Id.1 

Davenport’s test for “inadequacy” and “ineffectiveness” 

largely tracks § 2255(h)(2). That makes sense. The “structural 

problem” in § 2255 is that § 2255(h)(2) doesn’t authorize 

second or successive motions based on statutory claims. See

Poe v. LaRiva, 834 F.3d 770, 773 (7th Cir. 2016) (“Where 

Davenport recognized a structural problem in § 2255(h) is in 

the fact that it did not permit a successive petition for new 

rules of statutory law made retroactive by the Supreme 

Court.”). Davenport fixes that problem by effectively giving 

such prisoners the relief that they would have had if 

§ 2255(h)(2) had included them. 

 

1 There is a circuit split on whether the lack of relief for statutory claims is 

a feature or a bug of § 2255. Compare McCarthan v. Dir. of Goodwill Indus.-

Suncoast, Inc., 851 F.3d 1076, 1080 (11th Cir. 2017) (en banc) (holding that 

a change in caselaw does not make a § 2255 motion to vacate a prisoner’s 

sentence “inadequate or ineffective” under the saving clause), and Prost v. 

Anderson, 636 F.3d 578, 580 (10th Cir. 2011) (rejecting a statutory 

interpretation challenge under § 2241 as barred by § 2255), with United 

States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013) (authorizing saving-clause 

relief when an intervening statutory interpretation decision rendered the 

defendant’s conduct non-criminal), Reyes-Requena v. United States, 243 F.3d 

893, 903 (5th Cir. 2001) (same), In re Jones, 226 F.3d 328, 333–34 (4th Cir. 

2000) (same), Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997) 

(same), and In re Hanserd, 123 F.3d 922, 929–30 (6th Cir. 1997) (same). 
No. 18-3268 25 

Our cases, however, have phrased Davenport’s test 

inconsistently, and little by little, they have stopped tracking 

§ 2255(h)(2). Most significantly, we have moved away from 

Davenport’s requirement that the change in law come from the 

Supreme Court. 147 F.3d at 611. Sometimes we have included 

that requirement in our restatement of the test. See, e.g., Light 

v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014) (allowing for “a 

§ 2241 challenge based on a new statutory interpretation by 

the Supreme Court” (emphasis added)). Sometimes we have 

not. See, e.g., Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016). 

To be sure, almost all of our post-Davenport cases have dealt 

with petitions based on Supreme Court decisions, so in the 

mine-run of cases, nothing has turned on the source of the 

rule.2 Still, we stopped explicitly saying that the rule must 

come from the Supreme Court, and recently, we allowed a 

petitioner to obtain relief based on a circuit-level decision. 

Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019). Under our 

circuit’s law, therefore, a prisoner with a second or successive 

statutory claim can secure relief based on a court of appeals 

case, while a prisoner with a second or successive 

constitutional claim can secure relief only when the Supreme 

Court acts. That is an odd state of affairs. 

It also raises the stakes for the choice-of-law question that 

we do not resolve today: which circuit’s law applies to a 

 

2 The requirement that the new case be made retroactive by the Supreme 

Court—as opposed to the requirement that the case have been decided by 

the Supreme Court in the first place—is not a problem in Davenport cases. 

Statutory interpretations that narrow the range of conduct made criminal 

are always substantive and therefore retroactive. Because of that rule, a 

Supreme Court decision narrowing a criminal statute applies retroactively 

even if the Supreme Court doesn’t expressly say so. Prevatte v. Merlak, 865 

F.3d 894, 898 (7th Cir. 2017); Montana, 829 F.3d at 784. 
26 No. 18-3268 

Davenport petition. Chazen’s case illustrates the point. Chazen 

was convicted in the Eighth Circuit, so its law governed his 

trial, sentencing, direct appeal, and first § 2255 motion. Even 

now, there is no controlling law in the Eighth Circuit on which 

Chazen could base a claim for relief, so a collateral attack filed 

there would fail.3 But a § 2241 petition is filed in the circuit of 

confinement, and seeking the benefit of Van Cannon v. United 

States, 890 F.3d 656 (7th Cir. 2018), Chazen argues that we 

should apply Seventh Circuit law to resolve his petition. 

We should be skeptical of this argument. Applying the 

law of the circuit of confinement risks recreating some of the 

problems that § 2255 was designed to fix. See United States v. 

Hayman, 342 U.S. 205, 210–19 (1952) (explaining that § 2255 

directs post-conviction litigation to the district of conviction 

to avoid the practical problems that existed before § 2255, 

when all litigation was brought by a writ of habeas corpus in 

the district of confinement); see also HART & WECHSLER at 1356 

(cataloguing the issues courts faced before § 2255’s 

enactment). We have never decided the issue, but district 

courts confronting it have concluded that the law of the circuit 

of conviction applies. As one court explained: 

 

3 To be clear, while Chazen’s petition invokes Mathis v. United States as 

well as Van Cannon v. United States, Mathis is not the case that justifies 

granting him relief. See 136 S. Ct. 2243 (2016) and 890 F.3d 656 (7th Cir. 

2018). Van Cannon is the case that renders his burglary conviction 

insufficient to support the enhancement he received under the Armed 

Career Criminal Act. He invokes Mathis to justify his failure to raise this 

issue in his first § 2255 motion. Mathis itself does not offer him relief, 

because he does not complain that the sentencing court’s decision to count 

his burglary conviction was the result of the error Mathis identifies—

looking at the facts underlying his crime to conclude that he committed it 

by a violent means. Chazen needs both Mathis and Van Cannon to succeed. 
No. 18-3268 27 

The rule ensures that the law that prevails in the 

judicial circuit of any federal prisoner's 

conviction, or a substantially similar law, is the 

law that will be applied to the prisoner’s § 2241 

petition seeking vacation of a conviction. 

Application of the law of the place of conviction 

is a consistent, reasonable rule, as is evidenced 

by the requirement that § 2255 motions be filed 

in the district of conviction. The rule [petitioner] 

believes appropriate—applying the substantive 

law of the place of confinement—is actually far 

more arbitrary. Such a rule would base the 

choice of law decision on the fortuitous 

placement of a prisoner by the Bureau of 

Prisons, not the more rational factor of the place 

of conviction. 

Hernandez v. Gilkey, 242 F. Supp. 2d 549, 554 (S.D. Ill. 2001); see 

also Cano v. Warden USP–Terre Haute, No. 2:17-cv-441, 2018 

WL 3389746 (S.D. Ind. July 12, 2018); Roberts v. Watson, No. 16-

cv-541, 2017 WL 6375812 (W.D. Wis. Dec. 12, 2017); accord

Burgess v. Williams, No. 4:18-cv-2643, 2019 WL 2641902 (N.D. 

Ohio June 27, 2019); Eames v. Jones, 793 F. Supp. 2d 747, 749 

(E.D.N.C. 2011). This position has force. 

Today’s opinion avoids resolving the choice-of-law 

problem because the government conceded in the district 

court that Seventh Circuit law applies.4 I have reservations 

 

4 At the time the government took this position, Seventh and Eighth 

Circuit law were identical on the relevant point. Compare United States v. 

McArthur, 850 F.3d 925, 939–40 (8th Cir. 2017), with Van Cannon, 890 F.3d 

at 664–65. The ground shifted after the Supreme Court decided Quarles v. 

United States, 139 S. Ct. 1872, 1875 (2019). At that point, McArthur was 
28 No. 18-3268 

about whether we should accept this concession. While we 

have the discretion to accept a concession on a point of law, 

we are not obligated to do so. Krieger v. United States, 842 F.3d 

490, 499 (7th Cir. 2016) (“Of course we are not bound to accept 

the government’s concession when the point at issue is a 

question of law.”); see also Costello v. BeavEx, Inc., 810 F.3d 

1045, 1061 n.4 (7th Cir. 2016) (rejecting a party’s concession on 

a question of law). Here, I worry that accepting the concession 

risks giving the impression that we settled the issue. Lest 

there be any confusion, we have not. In a later case, this is an 

issue that deserves our careful consideration; it is not one that 

we should resolve for all cases based on the government’s 

litigating position in this one. 

Chazen’s case implicates other issues that the full court 

should clarify at some point. For example, as today’s opinion 

explains, we have articulated at least three different standards 

for determining whether a recently decided case qualifies as 

one that the petitioner could not have raised in his initial 

§ 2255 motion. Maj. Op. at 18–19. We need to pick one. And 

when we do, we should focus on the fact that some of our 

formulations specify that the recently decided case must 

announce a “new rule” without explaining what this means. 

See, e.g., Light, 761 F.3d at 812 (asserting that a § 2241 petition 

must be “based on a new statutory interpretation by the 

Supreme Court” (emphasis added)). In particular, we have 

not discussed whether “newness” in the Davenport context 

bears any relationship to the “newness” requirements in 

§ 2255(h)(2) and § 2255(f)(3). A “new” rule for purposes of 

these subsections is one that “breaks new ground” rather than 

 

abrogated, the choice-of-law question became outcome-determinative, 

and the government backtracked. 
No. 18-3268 29 

clarifying established law. Headbird v. United States, 813 F.3d 

1092, 1095 (8th Cir. 2016) (quoting Teague v. Lane, 489 U.S. 288, 

301 (1989)) (explaining that “newness” has the same meaning 

in both § 2255(h)(2) and § 2255(f)(3)). Other circuits have held 

that Mathis, which the Supreme Court characterized as 

dictated by Taylor, does not satisfy this test. See, e.g., 

Washington v. United States, 868 F.3d 64, 65–66 (2d Cir. 2017); 

Arazola-Gates v. United States, 876 F.3d 1257, 1259 (9th Cir. 

2017); In re Conzelman, 872 F.3d 375, 376–77 (6th Cir. 2017); 

United States v. Taylor, 672 F. App’x 860, 863 (10th Cir. 2016).

Thus, if the Davenport test uses “new” in the standard habeas 

sense that it has in § 2255(h)(2) and § 2255(f)(3), Chazen’s 

claim presumably cannot succeed. See Guenther v. Williams, 

No. 17-cv-231, 2017 WL 5054731 (W.D. Wis. Nov. 2, 2017) 

(holding that a Mathis claim is not cognizable under § 2241 

because Mathis applied established law rather than 

announcing a “new” rule). 

But as Chazen points out, we have not expressly embraced 

this definition of “new” for Davenport petitions—and we have 

sometimes implied that a “new” case is nothing more than 

one that opens a previously foreclosed position. If that’s right, 

cases like Mathis, which correct misapplications of “old” 

rules, qualify. Maybe that is the position that we want to take, 

but if so, we should expressly adopt and defend it. Doing so 

would require us to think through the implications of 

forgoing a “newness” requirement in this saving clause 

context. For example, that position might mean that 

§ 2255(f)’s statute of limitations renders § 2255 “inadequate 

and ineffective” when it blocks even a first motion relying on 

Mathis. But see Boatwright v. Warden Fairton FCI, 742 F. App’x 

701, 704 (3d Cir. 2018) (rejecting this position). 
30 No. 18-3268 

In sum, this body of law is plagued by numerous complex 

issues. This might not be the case in which to untangle them, 

but at some point, we need to give litigants and district courts 

better guidance.