Holt v. United States

843 F.3d 720, 2016 U.S. App. LEXIS 22136, 2016 WL 7217578
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 13, 2016
DocketNo. 16-1793
StatusPublished
Cited by56 cases

This text of 843 F.3d 720 (Holt v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holt v. United States, 843 F.3d 720, 2016 U.S. App. LEXIS 22136, 2016 WL 7217578 (7th Cir. 2016).

Opinion

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, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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 WL 1407713, 2016 U.S. Dist. Lexis 48063 (N.D. Ill. 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, — U.S. - — -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (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 maxi[722]*722mum, and substantive decisions such as Mathis presumptively apply retroactively on collateral review. See, e.g., Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (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, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (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.

Haney, 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 lack 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 destruc-five 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 [723]*723serious potential risk of physical injury to another[.]

Romanette (i) is the elements clause. Ro-manette (ii) comprises two clauses: “is burglary, arson, or extortion, involves use of explosives” and “otherwise involves conduct that presents a serious potential risk of physical injury to another”. The second of these, the residual clause, contains the only language that Johnson held unconstitutionally vague. The possibility that after Johnson defendants may have a stronger incentive to contest the classification of convictions under the elements clause — in the hope of moving them to the residual clause and thus eliminating them from the set of violent felonies — has nothing to do with Holt’s situation. His burglary conviction was classified as a violent felony under the burglary clause. Nothing in Johnson, Welch, or Stanley affects the proper treatment of burglary. convictions. So Holt’s second collateral attack cannot rest on Johnson.

Section 2255(h), which requires advance appellate approval of a second or successive collateral attack, incorporates 28 U.S.C. § 2244 by reference.

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Bluebook (online)
843 F.3d 720, 2016 U.S. App. LEXIS 22136, 2016 WL 7217578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holt-v-united-states-ca7-2016.