NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL ALBERT COURTRIGHT III, No. 20-15473
Petitioner-Appellant, D.C. No.
4:18-cv-00406-FRZ-JR
v.
BARBARA VON BLANCKENSEE, MEMORANDUM*
Complex Warden,
Respondent-Appellee,
and
UNKNOWN PARTY, named as Complex
Warden, Warden, USP Tucson,
Respondent.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted January 12, 2022
Pasadena, California
Before: BOGGS,** OWENS, and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Petitioner Carl Courtright, a federal prisoner convicted in the Southern
District of Illinois and incarcerated in Arizona at the time the petition was filed,
appeals from the district court’s denial of his habeas corpus petition under 28
U.S.C. § 2241. As the parties are familiar with the facts, we do not recount them
here. We have jurisdiction under 28 U.S.C. § 1291. “We review de novo the
denial of a 28 U.S.C. § 2241 petition,” Bottinelli v. Salazar, 929 F.3d 1196, 1198
(9th Cir. 2019), and we reverse.
1. Whether Courtright can file the instant petition under 28 U.S.C.
§ 2241 depends on the availability of the “escape hatch” in 28 U.S.C. § 2255,
which applies when a prisoner’s “remedy under § 2255 is ‘inadequate or
ineffective to test the legality of his detention.’” Stephens v. Herrera, 464 F.3d
895, 897 (9th Cir. 2006) (quoting § 2255). Section 2255 is inadequate “when a
petitioner (1) makes a claim of actual innocence, and (2) has not had an
unobstructed procedural shot at presenting that claim.” Id. at 898 (citation and
quotation marks omitted).
For the first prong, Courtright indeed claims actual innocence: He argues
that he is innocent of the mandatory life sentence he received under 18 U.S.C.
§ 3559(e) because his prior state conviction was not a categorical match for any of
2
the enumerated federal crimes.1 The district court’s conclusion that “innocence of
sentencing enhancements is insufficient to satisfy the actual innocence prong of the
escape hatch” is incorrect. In Allen v. Ives, 950 F.3d 1184, 1189-90 (9th Cir.
2020), which issued the same week as the district court’s order denying
Courtright’s petition, we held that a claim of actual innocence of a mandatory
sentencing enhancement is cognizable under 28 U.S.C. § 2241. See also Shepherd
v. Unknown Party, 5 F.4th 1075, 1077-78 (9th Cir. 2021) (restricting Allen to
mandatory sentencing schemes).
As for the second prong, Courtright also lacked an unobstructed procedural
shot at presenting his claim. At the time of his direct appeal and initial § 2255
motion, Seventh Circuit law foreclosed his theory that his state conviction was
broader than the federal offenses enumerated in § 3559(e). Under then-existing
precedent, the state statute would have been divisible, and Courtright’s crime of
conviction would have been a categorical match for at least one enumerated federal
offense. See United States v. Woods, 576 F.3d 400, 411 (7th Cir. 2009) (defining a
divisible statute as one that “creates several crimes or a single crime with several
modes of commission,” that is to say, “modes of conduct identified somehow in
1
That sentencing enhancement applies if, as relevant here, a defendant was
previously convicted of a state sex offense that would have been one of the
enumerated federal sex offenses, had it occurred within the special maritime and
territorial jurisdiction of the United States. See 18 U.S.C. § 3559(e)(2)(A)-(C).
3
the statute”). But the Supreme Court later rejected that approach to divisibility,
giving Courtright a shot at his categorical match argument for the first time. See
Mathis v. United States, 136 S. Ct. 2243, 2248-49 (2016) (holding that “a statute
that lists multiple, alternative means of satisfying one (or more) of its elements” is
not divisible). The government’s attempts to argue otherwise based on two
unpublished Seventh Circuit decisions are unpersuasive.
Courtright’s claim therefore meets both prongs of the escape hatch, and he
may bring the instant petition under 28 U.S.C. § 2241.
2. On the merits, Courtright argues that his prior Illinois conviction for
aggravated criminal sexual assault, 720 Ill. Comp. Stat. 5/12-16(a)(2), 1996 Ill.
Legis. Serv. 89-586 (West) (current version at 720 Ill. Comp. Stat. 5/11-1.60), is
not divisible. He specifically argues that the statute defining “sexual conduct,” 720
Ill. Comp. Stat. 5/12-12(e), 1993 Ill. Legis. Serv. 88-167 (West) (current version at
720 Ill. Comp. Stat. 5/11-0.1), lists possible means of committing the offense with
which he was charged.
We agree that the definition of “sexual conduct”—set out in a separate
statute twice removed from the statute of conviction—lists factual means by which
that element may be satisfied. Illinois courts have concluded that allegations in
indictments about the specific form of sexual conduct, e.g., body parts touched,
“constitute[] mere surplusage.” People v. Ikpoh, 609 N.E.2d 1025, 1037 (Ill. App.
4
Ct. 1993); accord People v. Lewis, 498 N.E.2d 1169, 1173-74 (Ill. App. Ct. 1986).
The statutes themselves neither expressly indicate that such details must be
charged nor authorize different punishments based on them. See Mathis, 136 S. Ct.
at 2256 (listing signs of divisibility). Finally, Illinois model jury instructions
reveal that the “statute is indivisible” because “the jury may disagree” on which
facts constitute sexual conduct “yet still convict.” Gomez Fernandez v. Barr, 969
F.3d 1077, 1090 (9th Cir. 2020) (citation omitted).
We therefore apply the categorical approach and “ask only whether the
elements of the state crime” and the federal offenses at issue “make the requisite
match.” Mathis, 136 S. Ct. at 2256. We conclude that they do not, as the Illinois
statute is broader than the federal offenses. Compare 720 Ill. Comp. Stat. 5/12-
12(e) (defining “sexual conduct” to include touching “directly or through clothing”
of, inter alia, “any part of the body” of a child under thirteen), with 18 U.S.C.
§ 2241 (referencing a “sexual act,” defined in 18 U.S.C. § 2246(2) to cover
touching a narrower range of body parts “not through the clothing”), and 18 U.S.C.
§ 2244(a)(1) (referencing “sexual contact,” defined in 18 U.S.C. § 2246(3) to cover
touching a narrower range of body parts).
Courtright’s prior state conviction is therefore not a categorical match for
any offense listed in 18 U.S.C. § 3559(e). He is actually innocent of that
sentencing enhancement and is entitled to resentencing without its application. On
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remand, the Arizona district court may wish to order briefing on whether it has
authority to resentence Courtright, or whether (and by what means) the case should
be transferred to the Southern District of Illinois.2
REVERSED AND REMANDED.3
2
See Chaney v. Von Blanckensee, 804 F. App’x 579, 582 n.3 (9th Cir. 2020)
(recognizing this “open and difficult question”). See generally, e.g., Lilly v. Rios,
No. 1:10-cv-01666 LJO MJS, 2011 WL 2433643 (E.D. Cal. June 14, 2011); Hill v.
Daniels, No. Civ.05–1292–AA, 2005 WL 2249858 (D. Or. Sept. 14, 2005);
Rumsfeld v. Padilla, 542 U.S. 426 (2004); Conley v. Crabtree, 14 F. Supp. 2d 1203
(D. Or. 1998).
3
Courtright’s motion to take judicial notice, Dkt. No. 24, is GRANTED.
6
Carl Courtright, III v. Barbara Von Blanckensee
Combined Opinion