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Holt v. United States

United States Court of Appeals, Seventh Circuit

December 13, 2016

Jakeffe Holt, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued November 16, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 11891 - Amy J. St. Eve, Judge.

          Before Easterbrook, Kanne, and Hamilton, Circuit Judges.

          Easterbrook, Circuit Judge.

         About a 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.

         Johnson 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. 2016).

         This 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).

         But 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.

         Honey, 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.

         Holt 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 unconstitutional.

         This 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 adult, that-
(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 ...

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