The 7th Circuit Court of Appeals was able to avoid a “thorny choice of law question” when it found that the cases cited by a federal prisoner convicted and sentenced in Missouri did not conflict with its sister circuit’s view that the offense of exhibiting weapons is a violent felony under the Armed Career Criminal Act.
In 2012, Allen Brown pled guilty in the Eastern District of Missouri to unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Also, in admitting to eight prior state law felony convictions, he was designated an armed career criminal and given an ACCA-enhanced 262 months sentence.
When he failed to get his conviction and sentence overturned in the Show Me State, he filed a habeas petition under 28 U.S.C. § 2241 in the Southern District of Indiana where he was then incarcerated. He argued under Mathis v. United States, 136 S. Ct. 2243 (2016) he no longer had the three predicated offenses necessary to sustain the ACCA-enhanced sentence.
However, the Southern Indiana District Court disagreed. Relying on the 8th Circuit Court of Appeals’ decision which reaffirmed United States v. Pulliam, 566 F.3d 784 (8ht Cir. 2009), the Hoosier federal court found Brown’s offense for exhibiting weapons remained a violent felony for ACCA purposes.
Appealing to the 7th Circuit, Brown relied on In re Davenport, 147 F.3d 605 (7th Cir. 1998). He took the position that when a sister circuit deems a state law offense to be an ACCA predicate but overlooks contrary decisions from courts in that state, then “we should go our own way in interpreting the state statute at issue.”
The 7th Circuit affirmed the ruling in Allen Brown v. Jeffrey E. Krueger, 20-1952 Thursday.
However, Judge Thomas Kirsch, writing for the 7th Circuit panel, noted the conundrum Brown’s argument posed for the Chicago-based appellate court.
“… Davenport driven § 2241 petitions present a thorny choice of law question: are we to apply the law of the circuit of confinement or that of the circuit of conviction?” Kirsch wrote. “If the latter, then Brown cannot prevail—Eighth Circuit precedent clearly leaves him with the three predicate offenses necessary to sustain his ACCA-enhanced sentence.”
The 7th Circuit ruled that the two cases Brown pointed to – State v. Gheen, 41 S.W.3d 598 (Mo. Ct. App. 2001) and State v. Parkhurst, 845 S.W.2d 31 (Mo. 1992) – did not conflict with the 8th Circuit’s view that § 571.030.1(4) is a violent felony. Consequently, the panel took Brown at his word that the 8th Circuit law now controls the outcome of the appeal.
“In going so, we decline to decide the Davenport choice of law question, which ‘deserves our careful consideration’ and should be resolved only after the benefit of full briefing on that issues from both parties in a future case,” Kirsch wrote.