Christopher Kelso v. Francisco J. Quintana

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 1, 2022
Decided June 9, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-3350
CHRISTOPHER KELSO,
Petitioner-Appellant,
v.
FRANCISCO J. QUINTANA,
Respondent-Appellee.
Appeal from the United States District
Court for the Southern District of Indiana,
Terre Haute Division.
No. 2:17-cv-00035
Jane Magnus Stinson,
Judge.
O R D E R
In 2009 a jury in the Eastern District of Tennessee convicted Christopher Kelso on
two conspiracy counts related to his involvement in a Knoxville-based drug distribution
ring. Before trial the government invoked 21 U.S.C. § 851 and filed an information
notifying Kelso that, based on his three prior felony convictions in Alabama state court
for possessing crack cocaine, he would face a mandatory life sentence if convicted on the
federal drug charge. See 21 U.S.C. § 841(b)(1)(A) (effective to Dec. 21, 2018). Following
the jury’s return of guilty verdicts, the district court imposed the mandatory life sentence.
The Sixth Circuit affirmed on direct appeal.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 21-3350 Page 2
Kelso then sought post-conviction relief under 28 U.S.C. § 2255, advancing various
arguments about ineffective assistance of counsel at his trial. The parties completed
briefing by early June 2014. The motion remained pending until November 2016, when
the district court denied relief.
In 2019, and seeking another shot at relief, Kelso filed this 28 U.S.C. § 2241 petition
in the Southern District of Indiana, where he was incarcerated at the time. Kelso argued
that the Supreme Court’s decision in Mathis v. United States, 579 U.S. 500 (2016), opened
a second door to post-conviction relief by showing that his three Alabama felony drug
convictions identified in the government’s § 851 information no longer qualify as
predicate offenses to support the mandatory life sentence. The district court disagreed,
denied relief, and Kelso timely appealed.
Section 2255 limits the circumstances in which a federal prisoner can file a second
or successive motion for post-conviction relief. See 28 U.S.C. § 2255(h) (permitting second
or successive motions based on new evidence or new rules of constitutional law made
retroactive to cases on collateral review by the Supreme Court). Not satisfying either
exception in § 2255(h), Kelso sought to pursue relief under § 2241 by trying to show he
satisfied the requirements of the so-called savings clause in § 2255(e). See Chazen v.
Marske, 938 F.3d 851, 856 (7th Cir. 2019) (explaining the statutory scheme).
In our circuit, a petitioner seeking to pursue relief through the savings clause must
show that (1) his claim relies on a case of statutory interpretation; (2) he 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. See In re Davenport,
147 F.3d 605 (7th Cir. 1998); see also Chazen, 938 F.3d at 856. Without satisfying this three-
part test, a petitioner cannot use the savings clause to pursue relief under § 2241.
The district court denied relief based on Kelso’s failure to satisfy the third prong
of the Davenport test. The court’s analysis emphasized that the Sixth Circuit, Kelso’s
circuit of conviction, does not use a categorical approach in determining whether a
federal defendant’s earlier state convictions are qualifying predicate offenses under 28
U.S.C. § 841(b)(1), and so Mathis did not undermine Kelso’s mandatory life sentence. On
appeal Kelso contends that the district court committed legal error in relying on Sixth
Circuit law to deny relief.
But we need not wade into the thorny, unresolved area of habeas choice-of-law
determinations to resolve this appeal. See Chazen, 938 F.3d at 864 (Barrett, J., concurring).
Kelso cannot seek relief under the savings clause because he cannot satisfy Davenport’s

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No. 21-3350 Page 3
second prong. The Supreme Court decided Mathis on June 23, 2016—at a time when
Kelso’s initial § 2255 motion remained pending before the district court in the Eastern
District of Tennessee. Our review of the docket in that proceeding shows that Kelso
neither sought leave to supplement his § 2255 motion in the five months between Mathis’s
issuance and the district court’s adjudication of his motion nor filed anything else to bring
Mathis to the district court’s attention. At oral argument, counsel was unable to identify
any reason Kelso could not have done so. In these circumstances, Kelso cannot
“establish[] that he was unable in his prior § 2255 proceedings to advance the arguments
he now raises to challenge his sentence.” Id. at 861.
Our analysis need go no further. Kelso’s failure to show that any Mathis-based
argument was unavailable at the time he first pursued relief under § 2255 in the Eastern
District of Tennessee means he is ineligible for savings clause relief.
In closing, we add only that Kelso’s reliance on Mathis as a basis for relief from his
federal sentence is misplaced. Kelso’s argument on the merits—that Alabama’s definition
of cocaine is overbroad in relation to the federal definition—sounds in this court’s
decision in United States v. Ruth, 966 F.3d 642 (7th Cir. 2020), not in the Supreme Court’s
Mathis decision. And as we explained in Ruth, “we apply the Taylor categorical approach”
to determine whether a federal defendant’s prior state conviction is a strike under § 841.
Ruth, 966 F.3d at 646. So, Mathis aside, Kelso could have made a Ruth-like argument in
the district court, on direct appeal, or in his first § 2255 motion based solely on Supreme
Court precedent as understood at the time of those proceedings. See Taylor v. United
States, 495 U.S. 575 (1990). He cannot invoke Mathis for a belated opportunity to make the
argument now.
For these reasons, we AFFIRM.

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