Morris v. United States

827 F.3d 696, 2016 U.S. App. LEXIS 12168, 2016 WL 3568137

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 1, 2016
• Docket: No. 16-2407
• Status: Published

Opinions

PER CURIAM.

Katrell Morris has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a successive motion to vacate under § 2255. Morris was sentenced as an armed career criminal under 18 U.S.C. § 924(e) and now wants to challenge his sentence under Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the residual clause of the Armed Career Criminal Act is unconstitutionally vague. The Supreme Court has made Johnson retroactive. Welch v. United States, — U.S.-, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Morris has made a prima facie showing that he may be entitled to relief.

Morris proposes to challenge only one of his three predicate offenses: his conviction for attempted robbery in Illinois, 720 ILCS 5/8-4(a), 184(a) (1997). The government points out in its response that this court determined in an unpublished decision that attempted robbery is a crime of violence (the guidelines equivalent to a violent felony) under the elements clause of U.S.S.G. § 2L1.2, app. n.l(B)(iii). United States v. Granados-Marin, 83 Fed.Appx. 834, 837 (7th Cir. 2003). But that decision is nonprecedential. Moreover, to determine whether an attempt offense constitutes a violent felony, a court must examine how state courts have applied the general attempt statute to the particular crime attempted. James v. United States, 550 U.S. 192, 197, 202-03, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); United States v. Collins, 150 F.3d 668, 671 (7th Cir. 1998) (“Therefore, we must also look to Wisconsin caselaw to see how the Wisconsin courts have interpreted the attempt statute in the context of burglary.”); United States v. Davis, 16 F.3d 212, 217-18 (7th Cir. 1994) (“The language of the attempt statute, standing alone does not greatly advance our inquiry.... An examination of Illinois caselaw, however, makes clear •that a defendant must come within ‘dangerous proximity to success’ to be convicted [of attempted burglary] under the attempt statute.”). Granados-Marin lacks this analysis.

Accordingly, we GRANT Morris’s application and AUTHORIZE the district court to consider his claim, along with the government’s defenses. The clerk of court will TRANSFER the papers to the district court for filing as a § 2255 action.