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United States v. Forrest

United States District Court, D. Nebraska

December 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN FORREST, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Pending before me is Forrest's second § 2255 action. It was initially filed on June 15, 2016 (filing no. 135) but amended on October 31, 2017 (filing no. 146). The amended motion is the governing pleading. I now deny Forrest relief but grant a certificate of appealability.

         BACKGROUND

         This case is about what crimes qualify as violent felonies under the Armed Career Criminal Act (ACCA). I greatly simplify this complex matter for the purposes of clarity:

         1. This is the second § 2255 case submitted by Forrest. It regards a sentence imposed in 2009. The Court of Appeals granted leave to file the motion effective on June 15, 2016 (filing no. 133) presumably because of the 2014 Johnson case and the fact that in 2015 the Welch case made the Johnson decision retroactive.

         2. In 2009, Forrest pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). I determined that he had four prior violent felony convictions-Colorado convictions for second degree burglary in 1986, robbery in 1988, and menacing in 1995, and a 2004 Kansas conviction for attempted burglary. On September 24, 2009 (filing no. 84), I sentenced Forrest to the mandatory minimum fifteen-year prison sentence prescribed for those defendants that have “three previous convictions ... for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). I did not specify what exact proviso of 18 U.S.C. § 924(e)(2)(B) I was applying.

         3. Forrest appealed challenging all of the predicate offenses as not being violent felonies. The Court of Appeals thought otherwise. United States v. Forrest, 611 F.3d 908 (8th Cir. 2010). In particular, as to the 1986 Colorado conviction for second degree burglary, the Court found that under the modified categorical approach, Forrest's prior Colorado conviction for second-degree burglary was a violent felony within the meaning of the specifically enumerated offenses under the ACCA. The Colorado criminal complaint clearly charged a generic burglary offense specifically enumerated under 18 U.S.C. § 924(e)(2)(B)(ii).[1] Id. at 913.

         4. On September 26, 2011, Forrest filed his first § 2255 action. (Filing no. 109.) In that matter, and among other things, Forrest again asserted that I erred in sentencing him as an armed career criminal. Because that argument had been raised and decided on direct appeal, I denied the ACCA claim on October 5, 201l. (Filing no. 112 at CM/ECF p. 6.) I also denied a certificate of appealability. The Court of Appeals denied a certificate of appealability and on December 23, 2011 dismissed the appeal. (Filing no. 120.) The mandate was issued on March 6, 2012. (Filing no. 122.)[2]

         5. In this action, Forrest now concedes that the menacing and robbery convictions in Colorado are qualifying ACCA predicates.

         6. In this action, and solely based on Johnson, the retroactivity of Johnson under Welch and the fact that the Eighth Circuit explicitly applied the “otherwise involves” (residual) clause of § 924(e)(2)(B)(ii) on direct appeal, Forrest, 611 F.3d at 912, the government now concedes that the 2004 Kansas conviction no longer qualifies as a predicate offense.

         7. The only remaining question is whether the 1986 Colorado conviction for second degree burglary is an ACCA predicate and can be challenged by using Johnson as a “portal” to invoke Mathis v. United States, 136 S.Ct. 2243 (2016) (holding that Iowa's burglary statute, which encompassed entry into any building, structure, or land, water, or air vehicle, set out alternative means of fulfilling its locational element, which were broader than the locational element of generic burglary, i.e., entry into a building or other structure, and thus, defendant's prior Iowa convictions for burglary did not qualify as predicate violent felony offenses for a 15-year mandatory minimum sentence under ACCA because the sentencing court was required to look at the elements of the statute only-the categorical approach rather than the modified categorical approach-thus following the reasoning of the 2013 decision in Descamps v. United States, 570 U.S. 254 (2013).).

         ANALYSIS

         It is undisputed that Mathis and Descamps are not retroactive. For example, consider United States v. Gabrio, No. 01-CR-165 (RHK), 2017 WL 3309670, at *4 (D. Minn., Aug. 2, 2017), stating:

These cases are not products of Johnson, but rather directly follow from Mathis, which in turn follows from Descamps v. United States, 133 S.Ct. 2276 (2013) and Taylor v. United States, 495 U.S. 575 (1990). None of these decisions have been made retroactively applicable to cases on collateral review. See Davis v. United States, No. 1:08cr74, 2017 WL 1477126, at *2 (E.D. Mo. Apr. 25, 2017) (noting that “several courts have held that Descamps and Mathis are not retroactively applicable to cases on collateral review”) (citing In re Thomas, 823 F.3d 1345 (11th Cir. 2016); Ezell v. United States, 778 F.3d 762 (9th Cir. 2015); Dawkins ...

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