Steven Liscano v. F. Entzel ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 4, 2020*
Decided March 8, 2021
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 19-1531 Appeal from the United
States District Court for the
STEVEN R. LISCANO,
Central District of Illinois.
Petitioner-Appellant,
v. No. 17-cv-1449
Sue E. Myerscough, Judge.
F. ENTZEL, Warden, FCI Pekin,
Respondent-Appellee.
Order
Steven Liscano was sentenced to life imprisonment following his conviction almost
20 years ago for conspiring to distribute more than five kilograms of cocaine. His sen-
tence was enhanced under 21 U.S.C. §841(b)(1)(A) because of two prior drug convic-
tions in Illinois. He did not protest that enhancement in the district court or on appeal.
See United States v. Bustamante, 493 F.3d 879 (7th Cir. 2007). Nor did he protest it when
he filed (and lost) a collateral attack under 28 U.S.C. §2255. See Liscano v. United States,
2011 U.S. Dist. LEXIS 79305 (N.D. Ill. July 18, 2011). But in 2017 he raised the issue by
* Associate Justice Barrett heard argument in this appeal while she was a member of this court. She
did not participate in the decision, which is being rendered by a quorum of the panel. 28 U.S.C. §46(d).
No. 19-1531 Page 2
seeking a writ of habeas corpus under 28 U.S.C. §2241. The district court dismissed this
petition, concluding that §2255(e) forecloses resort to §2241. Liscano v. Kallis, 2019 U.S.
Dist. LEXIS 229933 (C.D. Ill. Feb. 5, 2019), reconsideration denied, 2019 U.S. Dist. LEXIS
229934 (C.D. Ill. Mar. 1, 2019).
Liscano’s §2241 petition rests on Mathis v. United States, 136 S. Ct. 2243 (2016). The
Court held in Mathis that Iowa’s burglary statute does not establish a form of generic
burglary and therefore does not support a sentencing enhancement under the Armed
Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii). Liscano’s sentence was not enhanced
under that statute, nor is burglary among his prior convictions, so it is hard to see at
first glance how Mathis could affect him. But he insists that appearances are deceiving
and that the “divisibility” method that Mathis used to define the elements of burglary
under Iowa law, if applied to the version of the Illinois cocaine statute on the books in
1995, would lead to a conclusion that Illinois law specified an offense that did not meet
the federal definition of a cocaine crime.
The district court rejected that argument by holding that Mathis, as a statutory-
interpretation decision that does not establish anyone’s actual innocence of a federal
crime, does not apply retroactively on collateral review. Our circuit’s decisions about
the retroactivity of Mathis seem to look in different directions—compare Chazen v. Mar-
ske, 938 F.3d 851, 861 (7th Cir. 2019), with Hanson v. United States, 941 F.3d 874, 877 (7th
Cir. 2019)—but we need not revisit that subject today. Liscano’s fundamental problem is
§2255(e), which precludes use of §2241 unless it “appears that the remedy by motion
[under §2255] is inadequate or ineffective to test the legality of his detention.” Liscano
contends that this condition is satisfied, but that argument does not persuade us.
It is true, of course, that when he was convicted (2003) and sought relief under §2255
(2009), he could not rely on Mathis, which was not decided until 2016. But Mathis was
not exactly a bolt from the blue. It applied the method prescribed by Taylor v. United
States, 495 U.S. 575 (1990), of identifying burglary by comparing the elements of the
state-law crime against those of “generic burglary.” If Mathis presented any wrinkle, it
was the use of divisibility analysis to separate “elements” of the state crime from the
“means” of committing those elements. Divisibility analysis was established in this cir-
cuit no later than 2009, in United States v. Woods, 576 F.3d 400 (7th Cir. 2009). Liscano
could have relied on Woods in his collateral attack under §2255, but he didn’t. (He filed
the collateral attack before Woods was issued, but the proceeding remained pending in
the district court for more than a year after Woods settled the law in this circuit.)
For that matter, Liscano could have made the same sort of argument at trial and on
direct appeal. True, divisibility did not become this circuit’s official approach until 2009,
No. 19-1531 Page 3
but Woods did not overrule a body of contrary precedent. Liscano could have relied on
Taylor itself and contended that its approach disqualified at least one of his prior convic-
tions. Indeed, he could and should have done that even if there had been contrary prec-
edent in this circuit. A new decision holding that particular primary conduct is not
criminal applies retroactively even if a defendant fails to make the right argument at
trial. See Bousley v. United States, 523 U.S. 614, 623–24 (1998). But arguments that concern
the conduct of the trial, or the length of the sentence, must be made at trial and on ap-
peal, even if they go against appellate precedent. Id. at 622–23.
Several decisions released after the argument of this appeal emphasize that §2255
cannot be labeled “inadequate or ineffective” unless it suffers from some structural
problem that prevents its use to vindicate a legal claim that otherwise would suffice for
relief. See, e.g., Higgs v. Watson, 984 F.3d 1235, 1239–40 (7th Cir. 2021); Bourgeois v. Wat-
son, 977 F.3d 620, 633 (7th Cir. 2020); Purkey v. United States, 964 F.3d 603, 614–15 (7th
Cir. 2020). Because Liscano could have obtained in 2003 or 2009 a decision on the same
line of argument he presents now, we hold that §2255 does not suffer from the sort of
structural problem that allows him to invoke §2241.
AFFIRMED