United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on the defendant's motion and
amended motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (Filing No. 197 and
Filing No. 199). He challenges his fifteen-year
mandatory minimum sentence under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(c)(1)(A)(ii).
Cook seeks relief under Johnson v. United States,
135 S.Ct. 2551 (2015) (hereinafter, “Johnson
Supreme Court has given the decision in Johnson
(2015) retroactive effect in cases on collateral review.
Welch v. United States, 136 S.Ct. 1257, 1265 (2016).
The Eighth Circuit Court of Appeals has authorized Cook to
file a successive 28 U.S.C. § 2255 motion on the issue
of whether he “qualifies as an armed career criminal
based on his Nebraska convictions for making terroristic
threats and for assault after Johnson.” Filing No.
was indicted for being a felon in possession of a firearm and
ammunition after having been convicted of several felony
crimes. Filing No. 1, Indictment. The government
later filed an Information of Prior Convictions under 18
U.S.C. § 924(e)(1), alleging prior convictions for (1) a
terroristic threat, (2) assault by a confined person, and (3)
assault on an officer, then considered to be three prior
“crimes of violence” that subjected him to a term
of not less than fifteen (15) years under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. §
924(c)(1)(A)(ii). Filing No. 34.
October 28, 2008, a jury found Cook guilty of being a felon
in possession of ammunition, in violation of 18 U.S.C. §
922(g). Filing No. 82, Verdict. Cook was sentenced
to 204 months' (seventeen years) of imprisonment to be
followed by a five-year term of supervised release.
Filing No. 102, Judgment. Cook's sentence was
affirmed on appeal and his first motion for post-conviction
relief was denied. Filing Nos. 96, Notice of Appeal; 122, 8th
Circuit Opinion; 129, Motion to Vacate; and 141, Memorandum
and Order; see United States v. Cook, 603
F.3d 434 (8th Cir. 2010).
present motion, Cook contends that his conviction for
terroristic threats is not a crime of violence after
Johnson (2015). The government argues that
Johnson (2015) does not afford Cook any relief under
28 U.S.C. § 2255. It contends that Cook's predicate
terroristic threats conviction is not affected by Johnson
(2015), arguing that Cook's status as an armed
career criminal was based on the ACCA's force clause,
rather than the residual clause invalidated in Johnson
(2015). Further, the government argues that the
definition of a “crime of violence” under
Nebraska law fits within the definition of a violent felony
in the ACCA and accordingly a conviction under Nebraska's
terroristic threats statute is categorically a violent felony
under the ACCA.
28 U.S.C. § 2255, a court may grant relief to a federal
prisoner who moves to vacate, set aside or correct his
sentence on any of the following grounds: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2)
the court was without jurisdiction to impose such sentence;
(3) that the sentence was in excess of the maximum authorized
by law; or (4) that the sentence is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). Section 2255
provides a person in federal custody with a limited
opportunity to collaterally attack the constitutionality,
jurisdictional basis, or legality of his sentence. See
United States v. Addonizio, 442 U.S. 178, 185 (1979).
Relief is reserved for violations of constitutional rights
and for a narrow range of injuries that are outside the ambit
of a direct appeal and which, if untreated, would result in a
miscarriage of justice. See Poor Thunder v.
United States, 810 F.2d 817, 821-22 (8th Cir. 1987).
ACCA enhances a sentence for an individual convicted under 18
U.S.C. § 922(g) from a statutory maximum of ten years to
a statutory minimum of fifteen years if a defendant has been
convicted as a felon in possession of a firearm “and
has three previous convictions . . . for a violent
felony.” 18 U.S.C. § 924(e)(1). At the time of
Cook's sentencing, the ACCA gave three definitions of
“violent felony.” 18 U.S.C. § 924(e)(2)(B).
It referred to any offense that “has as an
element the use, attempted use, or threatened
use of physical force against the person of
another.” 18 U.S.C. § 924(e)(2)(B)(i)
(emphasis added). That provision is known as the “force
clause.” See United States v. Jordan, 812 F.3d
1183, 1185 (8th Cir. 2016). The ACCA also covered any offense
that “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). The first nine words of
that subsection are called the “enumerated crimes
clause, ” and the last thirteen are called the
“residual clause.” See id. The Supreme
Court found the residual clause unconstitutionally vague in
Johnson, 135 S.Ct. at 2563, but did not invalidate
the force clause or the enumerated crimes clause of the
ACCA's definition of a violent felony.
determine whether a prior conviction under a statute that
encompasses a single crime is a predicate violent felony
offense under the ACCA, the court must apply a categorical
approach, which focuses solely on the elements of the crime
of conviction and whether they match the definition under the
ACCA, while ignoring the particular facts of the case.
Mathis v. United States, 136 S.Ct. 2243, 2248
(2016); United States v. McFee, 842 F.3d 572, 574
(8th Cir. 2016) (stating that “[t]o determine whether a
prior conviction qualifies as an ACCA predicate offense under
the force clause, [courts] typically ‘apply a
categorical approach, looking to the elements of the offense
as defined in the . . . statute of conviction rather than to
the facts underlying the defendant's prior
conviction'”) (quoting United States v.
Rice, 813 F.3d 704, 705 (8th Cir. 2016)). In contrast,
when a state statute is divisible, “in that it defines
multiple crimes, some of which are ACCA predicate offenses
‘and some of which are not, [courts] apply a modified
categorical approach to look at the charging document, plea
colloquy, and comparable judicial records for determining
which part of the statute the defendant violated.'”
McFee, 842 F.3d at 574-75. A list of alternative
elements is divisible, but a list of alternative means is
not. Id.; see Mathis, 136 S.Ct. at
noted, under the force clause, a prior conviction must have
“as an element the use, attempted use, or threatened
use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B)(i). The meaning of
“physical force” in § 924(e)(2)(B)(i) is a
question of federal law, not state law. Johnson v. United
States, 559 U.S. 133, 140 (2010) (“Johnson
(2010)”). The phrase “physical force”
in § 924(e)(2)(B)(i) “means violent force-that is,
force capable of causing physical pain or injury to another
person.” Id.; United States v.
Williams, 690 F.3d 1056, 1067-68 (8th Cir. 2012). The
Nebraska Supreme Court's interpretation of state law,
however, applies with respect to the determination of the
elements of the underlying predicate crime. Johnson
(2010), 559 U.S. at 140.
elements of a crime ‘are what the jury must find beyond
a reasonable doubt to convict the defendant; and at a plea
hearing, they are what the defendant necessarily admits when
he pleads guilty.'” McFee, 842 F.3d at 575
(quoting Mathis, 136 S.Ct. at 2248). If the elements
of the crime of conviction “cover a greater swath of
conduct than the elements of the relevant ACCA ...