### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-3268

T ODD R. C HAZEN , Petitioner-Appellee,

v.

M ATTHEW M ARSKE , 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

.

____________________

A RGUED F EBRUARY 8, 2019

— D ECIDED S EPTEMBER 9, 2019

____________________

Before F LAUM, B ARRETT, and S CUDDER , Circuit Judges

. S CUDDER , Circuit Judge . A federal jury in Minnesota convicted Todd Chazen of possessing a fi rearm following a prior felony conviction. The districtcourt then sentenced Chazen pursuant to the Armed Career Criminal Act, which mandates a minimum 15-year sentence for a defendant who unlawfully possesses a fi rearm and has three prior convictions for a serious drug o ff ense or violent felony. After an unsuccessful direct appeal and petition for post-conviction relief under2 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 decisi on shows he no longer quali fi es as an armed career criminal and is entitled to a lesser sentence. The district court agreed and granted habeas relief. We

a ffi rm. 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 fi rearm, in violation of 18 U.S.C. § 922(g)(1). While this o ff ense ordinarily carries a ten-year maximum sentence, 18 U.S.C. § 924(a)(2), the district cour t considered whether Chazen quali fi ed 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 o ff ense.” 18 U.S.C. § 924(e)(1)

. The Act de fi nes violent felony as any federal or state felony that “has as an element the use, a tt empted use, or threatened use of physical force against the person of another” (the elements clause) or is “burglary, arson, or extortion” (the enumerated

o ff enses clause). Id. § 924(e)(2)(B). At the time of Chazen’s sentencing, the de fi nition 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 fi ve 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 governmentconceded that because Chazen’s two burglary convictions occurred on the same day and invo lved the same course of conduct, they should not be coun ted 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 o ff ense within themeaning 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 thathe 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 quali fi ed Chazen as an armed career criminal, noti ng only that “there [were] a number of possibilities” and fi nding (without further elaboration) that Chazen had “at least four” predicates. On direct appeal in the Eigh th Circuit, Chazen challenged his enhanced sentence, arguing th at the district court erred byconcluding that his Minnesota escape conviction was a qualifying felony under the Armed C areer Criminal Act’s residual clause. Relying on the governme nt’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 its4 No. 18-3268

concessions about Chazen’s burglary convictions and hisdrug conviction, asserting that any error with his escape conviction was harmless because, ev en without it, at least threequalifying convictions remained. It also contended that Chazen’s escape argument was direct ly foreclosed by Eighth Circuit precedent. The Eighth Ci rcuit agreed with the government and a ffi rmed Chazen’s sentence, concluding that the escape conviction quali fi ed 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 th e District of Minnesota, again challenging his classi fi cation as an armed career criminal. Chazen persisted in his contenti on that the sentencing court erred in determining that his escape conviction quali fi ed as a violent felony predicate. He also argued that the court was unable to rely on his drug conv iction or one of his burglary convictions given the governme nt’s concessions at sentencing. The district court denied relief, concluding that the escape conviction quali fi ed as a violent felony and fi nding Chazen’s other arguments procedurally defaulted. Two years after Chazen’s unsu ccessful § 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 Ch azen’s escape conviction was a residual-clause o ff ense, he sought authorization from the Eighth Circuit to fi le a second § 2255 petition for post-conviction relief. He simultaneously proceeded to fi le a second § 2255 petition in the sentencing court (the District of Minnesota), arguing that because Johnson knocked out his escapeNo. 18-3268 5

conviction, he no longer quali fi ed as an armed career criminal. The government agreed th at Chazen’s escape conviction no longer quali fi ed as a predicate following Johnson . But the government maintained that Ch azen 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 fi le 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-convi ction relief, this time by fi ling 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 th e law, only three of Chazen’s prior Minnesota convictions potentially quali fi ed 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

o ff ense 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 quali fi es 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 con fi ned), this court joined the Eighth Circui t in holding that because the Minnesota burglary statute covers more conduct than genericburglary, 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 part ies agree that for purposes of this appeal, there is no me aningful distinction between second- and third-degree burglary under Minnesota law. Relying on both Mathis and Van Cannon , the district courtgranted Chazen’s § 2241 petition, concluding that his burglary convictions no longer quali fi ed 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 a ff ording Chazen habeas relief under § 2241, thedistrict court took care to address a procedural point that defi nes much of the ba tt leground 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. Be ing 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 distri ct court (in Wisconsin) transferred Chazen’s case back to th e District of Minnesota (theNo. 18-3268 7

district of conviction) for re sentencing. The government now appeals.

IIAt 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 unde r the Act’s enumerated o ff ense clause. They take di ff erent positions on the merits of that question while also spilling substantial ink on the very kno tt y procedural issue of whether Ch azen 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 pr isoner wishing to collaterally

a tt ack 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,” reliefmay 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 proc eeding] to obtain a reliablejudicial 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 satis fi es § 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 moti on; (2) the petitioner could not have invoked the decision in his fi rst § 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 satis fi es the fi rst and third requirements. On the fi rst prong, Chazen argues that the direction recently provided by the Supreme Court in Mathis —a decision interpreting the Arme d Career Criminal Act—means that his Minnesota burglary conv ictions no longer qualify as violent felonies. And, as to the third prong for pursuing reliefunder § 2241, we have held that a defendant sentenced in error as an armed career criminal satis fi es 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 answ ered without evaluating the state of the law at that time an d how it has changed. In this way, then, substance and process bleed together. Our analysisproceeds 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 nowNo. 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 de fi ne the o ff ense, the Supreme Court has held that Congress used “burglary” to refer to the generic version ofthe 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 de fi

nition, Taylor instructed courts to use what is known as the “categorical approach” by “look[ing] only to the statutory de fi nitions of the prior o ff enses, 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 de fi nition, the conviction quali fi es as a violent felony under the Act. Id. at 602. Put another way, “[a] cr ime counts as ‘burglary’ under the Act if its elements are the same as, or narrower than, those of the generic o ff ense.” Mathis , 136 S. Ct. at 2248. But if “the statute sweeps more broadl y than the generic crime, a conviction under that law canno t count as an [Armed CareerCriminal Act] predicate, even if the defendant actually commi tt ed the o ff ense 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 courts10 No. 18-3268

are permi tt ed to look beyond the stat ute 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 o ff ense in the alternative”—courts may apply the so-called “modi fi ed 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 convictionmatch (or are narrower than) the elements of the generic offense.” Van Cannon, 890 F.3d at 663.The Supreme Court has underscored an important qualifi er: the modi fi ed categorical approach applies only to divisible statutes. The approach does not apply if a statute is indivisible—where the statute of co nviction does not contain alternative elements, but rather “a si ngle, ‘indivisible’ set of elements sweeping more broadly than the corresponding generic o ff ense.” Descamps , 570 U.S. at 260. When faced with a statute that “de fi nes a single o ff ense, albeit one with multiple modes of conviction,” a sentencing court is con fi ned to thestatutory elements and therefore cannot rely on any documents from a defendant’s crimin al case or otherwise embark on fact fi nding to discern the defendant’s actual o ff ense 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 o ff ense, 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 modi fi ed categorical approach to an overbroad statute turns on the i ssue 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 di ff erence between elements and means. See Najera-Rodriguez v. Barr, 926 F.3d 343, 348 (7th Cir. 2019) (“The di ff erence between ‘elements’ and ‘means’ can seem slippery, sometimes almost metaphysical, but signi fi cant legal consequences fl ow from that di ff erence.”). Adding to the ambiguity, some circuits interpreted a footnote in Descamps to permit sentencing courts to continue to apply the modi fi ed 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 Taylorand Shepard

— i.e ., indictment, jury instructions, pl ea colloquy, and plea agreement—would re fl ect 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 modi fi ed categorical approach” whether a statute liste d 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 the12 No. 18-3268

precept that “it is black-le tt er 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 de fi ned to include multiple alternative elements (thus creating multiple versions of a crime), as opposed to multiple alternative means (of commi tt ing the same crime)”). None of this is surprising. The law in this area is complex in the extreme; unexpected di ffi culties 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 quali fi es as “divisible” and to resolve the circuit split that had developed over the “elements” versus “means” distinction in the context of predicate o ff enses under the Armed Career Criminal Act. See 136 S. Ct. at 2251.

At issue in Mathis was whether Iowa’s burglary statute quali fi ed 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 commi tt ed and, relatedly, whether the di ff erent locations in the Iowa statute amounted to alternative means or alternative elements. See id.No. 18-3268 13

On this la tt er question, the Eighth Circuit had concluded this was a distinction without a di ff erence, explaining that “[w]hether [the di ff erent locations] amount[ed] to alternative elements or merely alternative means to ful fi lling an element, the statute is divisible, and [t he court] must apply the modifi ed 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 modi fi ed 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 modi fi ed categorical approach is unavailable when, as with the Io wa 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 elemen ts 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 modi fi ed 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 con fi ned to the text of the statute and if , as with burglary under Iowa law, any of the alternative mean s 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, expl aining that “elements” are a crime’s “constituent part s,” which a jury must fi nd beyond a reasonable doubt or a defendant must admit if he pleads14 No. 18-3268

guilty. Id. at 2248. “Means,” on the other hand, are merely “various factual ways of commi tt ing some component of the

o ff ense—a jury need not fi nd (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 de fi nition 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 with in the framework the Supreme Court supplied in Mathis. We fi rst considered whether the statute contained alternativ e elements—in which case the statute is divisible, and the modi fi ed categorical approach is available—or alternative means of commi tt ing a single element—which ends the inquiry. The Minnesota legislature defi ned second-degree burglary this way: “Whoever enters a building without consent and withintent 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 arepresent. Minn. Stat. § 609.582(2)(a) (emphasis added). We concluded that “[t]he disjunctive phrasing describes two di ff erent factual ways”—or means—“of commi tt ing a single crime,” meaning the stat ute is indivisible. Van Cannon , 890 F.3d at 664. “Because the statute is indivisible,” we explained, “a conviction under it does no t count as an [Armed CareerNo. 18-3268 15

Criminal Act] predicate if one of the listed alternatives is broader than generic burglary.” Id.

We concluded that the Minneso ta statute contained such overbreadth. Speci fi cally, we determined that while the fi rst alternative quali fi es as generic burglary—a person commitssecond-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 de fi nition of generic burglary because it “doesn’t require proof of intent to commit a crime at all —not at any point during the o ff ense 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 re quires us to revisit that holding. But we do need to take a breath and address a procedural point. Remember that Chazen commi tt ed his felon-in-possession o ff ense 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 ma tt er, 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 fi le 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 me rits of Chazen’s petition, weshould apply our own precedent or the precedent of the circuit of conviction. See Shepherd v. Krueger, 911 F.3d 861, 86316 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 ., Preva tt e v. Merlak , 865 F.3d 894, 898, 901 (7th Cir. 2017) (accepting thegovernment’s concession on an element of the savings clausetest and explaining that § 2241 and § 2255 address remedies, not jurisdiction). Given this co ncession, we see no reason why our holding in Van Cannon does not resolve the merits of Chazen’s claim. Our course of analysis is una ff ected 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 de fi nition of generic burglary requires proof that a defendant intended to commit a crime at the time he unlawfully entered, or instead whether it is su ffi cient 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 formsthe 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 brie fi ng, this holding may well abrogate the Eighth Circuit’s decision in McArthur, which rested on the “conte mporaneous intent” reasoning rejected in Quarles. See McArthur, 850 F.3d at 939. But theNo. 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 withou t deciding that the Supreme Court’s decision in Quarles may have abrogated McArthur ). What we can say with con fi dence 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 Minnesotaburglary 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 quali fi es 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 § 2255proceedings 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 relie f 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 substantive18 No. 18-3268

change in the law, but rather clari fi ed the circumstances under the Armed Career Criminal Act in which a sentencing court may apply the modi fi ed categorical approach, Chazen could have raised his arguments about Minnesota’s burglary statute in his initial § 2255 pe tition 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 a tt ack, he cannot now bring his claims under § 2241.

As an initial ma tt er, 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 inour 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 hisoriginal § 2255 petition—thus showing that § 2255 was “inadequate or ine ff ective 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 “n ew 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); Preva tt e , 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, no t in terms of a “new rule,” butrather in terms of whether the petitioner “relies on a retroactive decision that he could not have invoked in his fi rst § 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 wh ich 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 in itial § 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 mo tion 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’s20 No. 18-3268

§ 2255 motion in 2013, his claim for relief was foreclosed by Eighth Circuit precedent concluding that Minnesota burglary quali fi ed 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 fi t within the Act’s residual clause because “burglary always has a ‘serious potential ri sk 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 de fi nition of a “crime of violence,” the Eighth Circuit tr eated 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 re iterated its conclusion that Minnesota burglary quali fi es 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 fi rst moved for post-conviction relief under § 2255—“the law was squarely against” him in that itforeclosed 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 ou r caselaw is not a model of clarity with respect to whether a petitioner must rely on a “new rule,” the thrust of ou r precedent has focused on whether an intervening case of statutory interpretation opens the door to a previously foreclosed claim. Mathis fi ts the bill. Mathis injected much-needed clari ty and direction into the law under the Armed Career Criminal Act: before Mathis, theNo. 18-3268 21

Eighth Circuit had held that Mi nnesota burglary was a violent felony and it applied the modi fi ed categorical approach regardless of whether a statute liste d 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, includingour court and the Eighth Circuit, have concluded that Minnesota burglary is indivisible because it lists alternative means of commi tt ing 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

ma tt er 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 th e Armed Career Criminal Act quali fi es as a violent felony are no longer controlling because “[c]ontrary to the approach [the Eighth Circuit] took in those decisions, Mathis clari fi ed that if any of the means by which a defendant can commit a crime fall outside the de fi nition of the generic o ff ense, then it is not a violent felony, even if the defendant actually commi tt ed the generic crime”).

Before Mathis it would have been futile for Chazen to argue that his Minnesota burglary convictions did not qualifyas 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 law22 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 fi nds 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 tw o Minnesota burglary convictions no longer qualify as predicates under § 924(e).

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

B ARRETT, 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 di ff erent 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 de fi nition of “inadequacy” and “ine ff ectiveness” under § 2255(e) undermines the limit s that § 2255(h) imposes on second or successive motions. Our patch for statutory cases has grown larger than the hole we identi fi ed in the statute. Davenport aims to fix a “glitch” in § 2255(h)(2). See Brown v. Caraway, 719 F.3d 583, 587 n.1 (7thCir. 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. H ART & W ECHSLER ’ S T HE F EDERAL C OURTS AND THE F EDERAL S YSTEM 1362 (Richard H. Fallon Jr. et al. eds., 7th ed. 2015). But “Congress seems to have lost si ght of the fact that federal convicts more often can raise federal statutoryclaims in their collateral attacks—notably in cases in which the federal criminal statute under which a prisoner was convicted has24 No. 18-3268

since been authoritatively interpreted more narrowly.” Id

. Davenportholds that § 2255’s failure to provide a federal prisoner “ anyopportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexisten t 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 statutorylaw 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 littl e, they have stopped tracking § 2255(h)(2). Most significantl y, we have moved away from Davenport ’s requirement that the chan ge 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 Suprem e 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 statutoryclaim 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 th e 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 th at 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 re troactive. 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

Davenportpetition. Chazen’s case illu strates the point. Chazen was convicted in the Eighth Circ uit, 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. 201 8), 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 confinemen t 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 H ART & W ECHSLERat 1356 (cataloguing the issues courts faced before § 2255’s enactment). We have never decided the issue, but district courts confronting it have conclu ded 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 decisionon 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 re solving 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, McArthurwas28 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 se tt led the issue. Lest there be any confusion, we have not. In a later case, this is an issue that deserves our careful co nsideration; 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 e xplaining 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 th e “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 questi on 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 “newn ess” 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 forecl osed 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” requirem ent in this saving clause context. For example, that position might mean that § 2255(f)’s statute of limitati ons 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 ca se in which to untangle them, but at some point, we need to gi ve litigants and district courts better guidance.