November 16, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 C 11891 - Amy
J. St. Eve, Judge.
Easterbrook, Kanne, and Hamilton, Circuit Judges.
Easterbrook, Circuit Judge.
decade ago, Jakeffe Holt was convicted of possessing a
firearm despite prior convictions that barred gun ownership.
18 U.S.C. §922(g)(1). Several of those convictions led
the district court to deem him an armed career criminal, 18
U.S.C. §924(e), and impose a 200-month sentence.
v. United States, 135 S.Ct. 2551 (2015), holds that the
residual clause in §924(e)(2)(B)(ii) is
unconstitutionally vague. Holt then launched a collateral
attack on his sentence under 28 U.S.C. §2255. Section
924(e) applies to persons with three prior violent felonies
or serious drug offenses. The district court had counted a
burglary conviction toward this number. Holt argued that this
was a mistake. The district court rejected this argument and
denied Holt's petition. 2016 U.S. Dist. Lexis 48063 (N.D.
111. Apr. 11, 2016). While Holt's appeal was pending we
held that the version of the Illinois burglary statute under
which he had been convicted is indeed not a "violent
felony" because it does not satisfy the definition of
"burglary" used in Mathis v. United
States, 136 S.Ct. 2243 (2016), for indivisible statutes.
See United States v. Haney, 840 F.3d 472 (7th Cir.
development led us to ask for supplemental briefs on the
question whether Mathis and Haney apply
retroactively on collateral review under §2255. The
United States has conceded that they do. Without the armed
career criminal enhancement, Holt's maximum sentence
would have been 120 months under §924(a)(2). Section
2255(a) allows a district court to reduce a sentence that
exceeds the statutory maximum, and substantive decisions such
as Mathis presumptively apply retroactively on
collateral review. See, e.g., Davis v. United
States, 417 U.S. 333 (1974); Montgomery v.
Louisiana, 136 S.Ct. 718 (2016).
here Holt encounters a snag: This is his second §2255
proceeding. A second or successive collateral attack is
permissible only if the court of appeals certifies that it
rests on newly discovered evidence (which Holt's does
not) or "a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable." 28 U.S.C.
§2255(h)(2). See also 28 U.S.C. §2244(b).
Johnson is a new rule of constitutional law, and in
Welch v. United States, 136 S.Ct. 1257 (2016), the
Supreme Court made Johnson's rule retroactive.
Holt asked for leave to pursue a second collateral attack
based on those precedents, and we granted his application.
But his current argument rests on Mathis and
Haney, not on Johnson and Welch.
as a decision of this court, cannot satisfy §2255(h)(2),
and Mathis has not been declared retroactive by the
Supreme Court-nor is it a new rule of constitutional law.
Mathis interprets the statutory word
"burglary" and does not depend on or announce any
novel principle of constitutional law. Section 2255(h)(2)
therefore does not authorize a second §2255 proceeding.
See Dawkins v. United States, 829 F.3d 549, 551 (7th
Cir. 2016) (arguments that rest on Mathis do not
justify second or successive collateral attacks). While
conceding that Holt would prevail in an initial collateral
attack, the United States insists that he is not entitled to
relief in this second §2255 proceeding.
submits that, despite appearances, his collateral attack
really rests on Johnson. Although we stated in
Stanley v. United States, 827 F.3d 562 (7th Cir.
2016), that Johnson does not affect sentence
enhancements under the elements clause of
§924(e)(2)(B)(ii), we noted that, before
Johnson, some defendants may have refrained from
objecting to the classification of particular convictions
under the elements clause because, even if these offenses
lacked actual or threatened violence as an element, they
still would have been treated as violent felonies under the
residual clause. 827 F.3d at 565. By knocking out the
residual clause Johnson thus opened the door to
arguments based on the limits of the elements clause. So
Holt's argument goes. Stanley itself did not
draw this conclusion, however, because Johnson did
not interpret the elements clause or declare it
aspect of Holt's argument treats §924(e)(2)(B) as
having only two clauses: elements and residual. Show that a
given conviction does not satisfy the elements clause and you
kick it into the residual clause, where Johnson
applies. The problem is that §924(e)(2)(B) has
three clauses, not two. Here is its full text:
[T]he term "violent felony" means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential ...