Dustin Higgs v. T. Watson

D
                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 20-2129
DUSTIN JOHN HIGGS,
                                               Petitioner-Appellant,
                                 v.

T. J. WATSON, Warden,
                                              Respondent-Appellee.
                    ____________________

        Appeal from the United States District Court for the
         Southern District of Indiana, Terre Haute Division.
        No. 2:16-cv-321 — Jane Magnus-Stinson, Chief Judge.
                    ____________________

   ARGUED JANUARY 5, 2021 — DECIDED JANUARY 11, 2021
               ____________________

   Before WOOD, BRENNAN, and SCUDDER, Circuit Judges.
    SCUDDER, Circuit Judge. In 1996 Dustin Higgs participated
in the kidnapping and murder of three young women on fed-
eral property in Maryland. Federal charges followed. A jury
returned guilty verdicts across the board, and Higgs received
nine death sentences. The district court also imposed a 45-
year consecutive sentence for Higgs’s use of a firearm during
the crimes, in violation of 18 U.S.C. § 924(c). Housed in the
U.S. Penitentiary in Terre Haute, Indiana, Higgs filed a
2                                                  No. 20-2129

petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 in the Southern District of Indiana seeking to invalidate
his § 924(c) convictions based on the Supreme Court’s 2019
decision in United States v. Davis.
   Rather than reaching the merits of this claim, the district
court dismissed the petition after concluding that Higgs was
unable to satisfy the savings clause in 28 U.S.C. § 2255(e) and
therefore unable to pursue habeas corpus relief under § 2241.
We agree. Because there is nothing structurally inadequate or
ineffective about using § 2255 to bring a Davis-based claim,
Higgs cannot seek relief under § 2241.
                               I
                               A
    January 1996 Dustin Higgs, Willie Mark Haynes, and Vic-
tor Gloria drove from Laurel, Maryland to Washington, D.C.
to pick up Tanji Jackson, Tamika Black, and Mishann Chinn.
Back at Higgs’s apartment, he and Jackson began arguing in
the early morning hours. Jackson, Black, and Chinn then
walked out. Infuriated that Jackson seemed to write down his
license plate number on her way out, Higgs grabbed his gun
and together with Haynes and Gloria decided to go after the
three women. Upon catching up with them, Haynes lured
Jackson, Black, and Chinn into Higgs’s van, apparently prom-
ising them a ride home. But instead Higgs drove them to the
Patuxent National Wildlife Refuge in Maryland, federal land
under the jurisdiction of the U.S. Park Police. Upon finding a
secluded location and directing the women out of the van,
Higgs handed his gun to Haynes, who then shot and killed
Jackson, Black, and Chinn.
No. 20-2129                                                      3

    A federal grand jury in the District of Maryland indicted
Higgs and Haynes for three counts of each of the following:
first-degree premeditated murder (18 U.S.C. § 1111(a)), first-
degree murder committed in the perpetration of kidnapping
(18 U.S.C. § 1111(a)), kidnapping resulting in death (18 U.S.C.
§ 1201(a)), and using a firearm in the commission of a crime
of violence (18 U.S.C. § 924(c)).
    The district court severed the cases for trial. Haynes, the
triggerman, was tried and convicted first. During the penalty
phase of Haynes’s trial, the jury failed to reach a unanimous
verdict on the death sentences, so the district court imposed
concurrent life sentences for the murder and kidnapping con-
victions and a 45-year consecutive sentence for the § 924(c) of-
fenses.
    Higgs’s trial came next. A jury returned a guilty verdict on
all counts and recommended a death sentence for each of the
murder and kidnapping counts pursuant to the Federal Death
Penalty Act of 1994, 18 U.S.C. §§ 3591–3598. The district court
agreed with the recommendation and imposed nine death
sentences, while also sentencing Higgs to 45 consecutive years
for the three § 924(c) convictions. The Fourth Circuit affirmed
on all fronts.
                                B
    For nearly the past twenty years, Higgs has pursued post-
conviction relief in the District of Maryland and the Fourth
Circuit. None of his efforts have succeeded, though. See, e.g.,
United States v. Higgs, 

663 F.3d 726

(4th Cir. 2011); United States
v. Higgs, 95 F. App’x 37 (4th Cir. 2004). In 2016 Higgs asked
the Fourth Circuit for permission to file a new § 2255 motion
to challenge his § 924(c) convictions based on the Supreme
4                                                   No. 20-2129

Court’s decision a year earlier in Johnson v. United States, 

576 U.S. 591

(2015). The Court in Johnson held that the residual
clause of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B), was unconstitutionally vague. See

id. at 596–97.

The Fourth Circuit summarily denied Higgs’s request.
    Unable to secure relief in the circuit of his conviction, in
2016 Higgs turned to the Southern District of Indiana—the
district of his confinement—for relief. He invoked 28 U.S.C.
§ 2241 and sought a writ of habeas corpus on the basis of John-
son. Higgs was not just seeking relief from his § 924(c) convic-
tions. His strategy was broader and focused ultimately on va-
cating his death sentences. Higgs contended that relief in the
first instance from his allegedly invalid § 924(c) convictions
would call the entirety of his sentence into question, leading
to an altogether new sentencing proceeding, at which he
could seek to avoid capital punishment.
   The district court stayed Higgs’s § 2241 proceedings pend-
ing the Supreme Court’s decision in United States v. Davis. The
Supreme Court decided Davis in 2019, holding that
§ 924(c)(3)(B), the residual clause in the definition of “crime of
violence,” is unconstitutionally vague. 

139 S. Ct. 2319

, 2336
(2019).
    While the § 2241 proceeding was stayed in the Southern
District of Indiana, Higgs submitted a renewed application in
the Fourth Circuit seeking authorization to file another § 2255
motion. Here, too, he contended that Davis announced a new
rule of constitutional law that applied to his § 924(c) convic-
tions. The Fourth Circuit again denied Higgs’s request in a
summary order unaccompanied by a statement of reasons.
No. 20-2129                                                      5

                                C
     Back in the Southern District of Indiana, the district court
lifted the stay and, after receiving supplemental briefing ad-
dressing Davis’s impact on Higgs’s claim, denied the § 2241
petition. A federal prisoner may seek relief under § 2241 when
“the remedy by [a § 2255] motion is inadequate or ineffective
to test the legality of his detention.” 28 U.S.C. § 2255(e). As the
district court explained, our precedent has interpreted the
savings clause in § 2255(e) and identified a handful of situa-
tions in which § 2255 provides an inadequate or ineffective
remedy. One of those circumstances includes a claim alleging
a miscarriage of justice based on a new rule of statutory inter-
pretation announced by the Supreme Court. See In re Daven-
port, 

147 F.3d 605

, 610 (7th Cir. 1998).
    Higgs contended that his claim fit within the Davenport ex-
ception because, even though Davis announced a constitu-
tional holding, the case also entailed substantial conclusions
of statutory interpretation about the meaning of
§ 924(c)(3)(B). The district court, however, was unwilling to
deviate from the consensus of other circuits that have uni-
formly held that Davis announced a new rule of constitutional
law made retroactive to cases on collateral review, thereby
opening the door to a second or successive motion under
§ 2255(h)(2). The court emphasized that it had “no reason to
believe that the Fourth Circuit will break with every other cir-
cuit” on this issue and “assume[d] that successive § 2255 mo-
tions will be available in the Fourth Circuit for federal prison-
ers relying on Davis.” Concluding that Davis was a constitu-
tional case, the district court held that the Davenport exception
did not apply to Higgs’s claim and denied his § 2241 petition
as barred by the savings clause in § 2255(e).
6                                                  No. 20-2129

   Higgs now appeals. While this appeal was pending, the
government scheduled his execution for January 15, 2021.
                               II
   The legal question before us is whether Higgs can use the
general federal habeas corpus statute, 28 U.S.C. § 2241, to
challenge his § 924(c) convictions under Davis. We can only
reach the merits of Higgs’s Davis challenge if we answer that
question in his favor.
                               A
    For federal prisoners like Higgs, 28 U.S.C. § 2255 serves as
the default statute for pursuing postconviction remedies.
“Strict procedures govern” the process by which a prisoner
may file a § 2255 motion. Purkey v. United States, 

964 F.3d 603

,
611 (7th Cir. 2020). A federal prisoner, for example, is limited
to filing only one motion under § 2255 unless he receives per-
mission to file a second or successive motion from the appro-
priate court of appeals. See 28 U.S.C. § 2255(h). Permission to
file another § 2255 motion can come in only two narrow situ-
ations when: (1) newly discovered evidence, if proven, would
be sufficient to establish innocence, or (2) there is a new rule
of constitutional law made retroactive to cases on collateral
review by the Supreme Court. See

id. In § 2255(e),

however,
Congress also included a narrow pathway—commonly called
the savings clause—for prisoners to seek relief through
§ 2241.
   The savings clause is front and center in Higgs’s appeal. It
provides:
       An application for a writ of habeas corpus in be-
       half of a prisoner who is authorized to apply for
       relief by motion pursuant to this section, shall
No. 20-2129                                                     7

       not be entertained if it appears that the appli-
       cant has failed to apply for relief, by motion, to
       the court which sentenced him, or that such
       court has denied him relief, unless it also ap-
       pears that the remedy by motion is inadequate or
       ineffective to test the legality of his detention.

Id. § 2255(e) (emphasis

added). We have held that an avenue
for postconviction relief may be “inadequate” or “ineffective”
when “so configured as to deny a convicted defendant any
opportunity for judicial rectification of so fundamental a de-
fect in his conviction as having been imprisoned for a nonex-
istent offense.” 

Davenport, 147 F.3d at 611

.
    In Purkey, we canvassed three scenarios from prior cases
illustrating the inadequacy or ineffectiveness of the relief oth-
erwise available through § 2255. 

See 964 F.3d at 611

–13 (citing
and discussing Davenport, 

147 F.3d 605

(involving a claim al-
leging a miscarriage of justice and based upon a new rule of
statutory interpretation made retroactive by the Supreme
Court); Garza v. Lappin, 

253 F.3d 918

(7th Cir. 2001) (involving
a claim based on the ruling of an international tribunal issued
after the prisoner’s first round of § 2255 relief); and Webster v.
Daniels, 

784 F.3d 1123

(7th Cir. 2015) (en banc) (involving a
claim that relied on new evidence that existed but was alleg-
edly unavailable at trial, where the new evidence could show
that the petitioner is categorically ineligible for the death pen-
alty under the Eighth Amendment)).
   As we explained in Purkey and reiterate today, our deci-
sions in Davenport, Garza, and Webster do not “create rigid cat-
egories delineating when the [savings clause] is 

available.” 964 F.3d at 614

. Such a conclusion “would be inconsistent
with the standard-based language of section 2255(e).”

Id. at 8

                                                    No. 20-2129

614–15. To be sure, we took care in Purkey to emphasize that
the terms “inadequate” and “ineffective” (as used in
§ 2255(e)’s savings clause) must mean something more than
the mere lack of success.

Id. at 615.

Instead, “there must be
some kind of structural problem with section 2255 before sec-
tion 2241 becomes available.” 

Webster, 784 F.3d at 1136

(em-
phasis added).
    With this legal framework in mind, we turn to what all of
this means for Dustin Higgs.
                                 B
    Higgs filed his § 2241 petition in the Southern District of
Indiana seeking to challenge his § 924(c) convictions under
the Johnson-Davis line of cases. Unfortunately for Higgs, how-
ever, his Davis challenge to his firearm convictions is not cog-
nizable under § 2241. We reached this same conclusion on
analogous facts less than two months ago in the capital case
of Orlando Hall. See Hall v. Watson, 829 F. App’x 719 (7th Cir.
2020).
    Higgs cannot meet the savings-clause standards most ap-
plicable to his circumstances—the ones established in Daven-
port. For the Davenport exception to apply, the petitioner must
“rel[y] on ‘not a constitutional case, but a statutory-interpre-
tation case, so [that he] could not have invoked it by means of
a [§ 2255(h)(2)] motion.’” Montana v. Cross, 

829 F.3d 775

, 783
(7th Cir. 2016) (second alteration in original) (quoting Brown
v. Rios, 

696 F.3d 638

, 640 (7th Cir. 2012)).
   Higgs concedes, as he must, that Davis is at least in part a
rule of constitutional law, but he emphasizes that the bulk of
Davis’s analysis focuses on the statutory interpretation of
§ 924(c)(3)(B). See, e.g., 

Davis, 139 S. Ct. at 2327

(“So, while the
No. 20-2129                                                    9

consequences in this case may be of constitutional dimension,
the real question before us turns out to be one of pure statu-
tory interpretation.”).
   No doubt Davis includes much discussion regarding the
meaning of § 924(c)(3)(B). At bottom, though, Davis an-
nounced a constitutional decision. The Supreme Court said as
much, expressly “agree[ing] with the court of appeals’ con-
clusion that § 924(c)(3)(B) is unconstitutionally vague.”

Id. at 2336.

Because Davis is a constitutional case, we cannot say
there is anything structurally “inadequate” or “ineffective”
about § 2255 as a remedy for petitioners like Higgs challeng-
ing their § 924(c) convictions under Davis. Put another way,
nothing about § 2255, including the limitations it imposes on
second or successive motions, prevented Higgs from pursu-
ing relief based on Davis’s constitutional holding.
    Recall that Higgs did just that when he sought permission
from the Fourth Circuit to file a new Davis-based § 2255 mo-
tion. That Higgs did not succeed with this request in the
Fourth Circuit does not itself show that § 2255 was inadequate
or ineffective. And because the savings clause does not apply
to Higgs, the district court was right to conclude that his Da-
vis-based claim is not cognizable under § 2241. See Hall, 829 F.
App’x at 720 (reaching the same conclusion).
    In so concluding, we do not adopt the theory the govern-
ment advanced at oral argument that Supreme Court cases in
the savings-clause context can never be “bilateral”—meaning
both constitutionally and statutorily based. To the govern-
ment, a case is either constitutional or it is not. We decline to
adopt this bright-line approach, for court decisions can entail
substantial nuance and often are not so binary. It is
10                                                 No. 20-2129

conceivable that a case could rest on a few grounds, including
both statutory and constitutional bases.
   Here, though, we agree that Davis is best and most fairly
read as only a constitutional case for purposes of interpreting
the limitations of a second or successive § 2255 motion. So
Higgs cannot proceed under the savings clause.
                              III
    We close with a couple of observations in response to the
parties’ competing speculations that seek to explain the
Fourth Circuit’s summary order denying Higgs’s application
to file a new § 2255 motion. We do not know, and should not
speculate about, the reasons supporting the Fourth Circuit’s
decision. Higgs urges us to conclude that our sister circuit’s
order reveals a structural deficiency, thereby enabling him to
pursue § 2241 relief through the savings clause. In his view,
the fact that the Fourth Circuit did not explain its decision—
combined with the statutory prohibition on appellate review
of the denial of his application, see 28 U.S.C. § 2244(b)(3)(E)—
creates a structural problem preventing him from seeking a
remedy under § 2255. Absent this alleged deficiency, Higgs
sees himself as being able to pursue Davis-based relief in a
new § 2255 motion.
    We see the analysis in a different way. Higgs has not
shown that the denial of his application to file a new § 2255
motion was somehow legally indefensible or the product of
some irregularity in the judicial decision-making process. Dif-
ficult though such a showing may be for a federal or state pris-
oner, we do not rule it out in some future case presenting ex-
traordinary circumstances. All we need to say today, though,
is that we are confident Higgs has not presented such a case.
No. 20-2129                                                 11

    One final point warrants underscoring. What Higgs un-
derstandably emphasized on appeal, aided as he was by a
team of very able counsel, was the disparity between his cir-
cumstances (facing death sentences and an impending execu-
tion date) and those of his co-defendant, Willie Haynes (the
triggerman who received life sentences and permission to file
a successive § 2255 motion to challenge his § 924(c) convic-
tions). The reasons for Higgs being prevented but Haynes be-
ing allowed to file a new § 2255 motion are not plain to us.
Regardless, in the circumstances before us, the disparity alone
does not establish the inadequacy or ineffectiveness of § 2255
as a remedy.
   For these reasons, we AFFIRM.

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