Jakeffe Holt v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1793
JAKEFFE HOLT,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 11891 — Amy J. St. Eve, Judge.
____________________
A RGUED NOVEMBER 16, 2016 — DECIDED D ECEMBER 13, 2016
____________________
Before EASTERBROOK, K ANNE, 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.

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2 No. 16-1793
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 dis-
trict 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. L EXIS 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 in-
deed 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 retroactive-
ly 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-
mum, and substantive decisions such as Mathis presump-
tively 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 per-
missible 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

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No. 16-1793 3
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.
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 con-
stitutional law. Section 2255(h)(2) therefore does not author-
ize 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 collat-
eral attack, the United States insists that he is not entitled to
relief in this second §2255 proceeding.
Holt submits that, despite appearances, his collateral at-
tack 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 de-
fendants may have refrained from objecting to the classifica-
tion of particular convictions under the elements clause be-
cause, even if these offenses lacked actual or threatened vio-
lence as an element, they still would have been treated as vi-
olent felonies under the residual clause. 827 F.3d at 565. By
knocking out the residual clause Johnson thus opened the

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4 No. 16-1793
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 hav-
ing 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 im-
prisonment 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 explo-
sives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another[.]
Romanette (i) is the elements clause. Romanette (ii) compris-
es 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 lan-
guage that Johnson held unconstitutionally vague. The possi-
bility that after Johnson defendants may have a stronger in-
centive 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 fel-
onies—has nothing to do with Holt’s situation. His burglary
conviction was classified as a violent felony under the bur-

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No. 16-1793 5
glary 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 ap-
proval of a second or successive collateral attack, incorpo-
rates 28 U.S.C. §2244 by reference. Section 2244(b)(3)(E)
reads: “The grant or denial of an authorization by a court of
appeals to file a second or successive application shall not be
appealable and shall not be the subject of a petition for re-
hearing or for a writ of certiorari.” Thus we cannot treat the
prosecutor’s supplemental brief as implying a request that
we rehear, and rescind, the certificate authorizing a second
collateral attack. But §2244(b)(4) adds: “A district court shall
dismiss any claim presented in a second or successive appli-
cation that the court of appeals has authorized to be filed un-
less the applicant shows that the claim satisfies the require-
ments of this section.” This means that someone in Holt’s
position must show the district court that the requirements
for a second collateral attack have been satisfied, and that
issue is reviewable on appeal in the ordinary course.
Section 2255(h) permits a court of appeals to authorize a
successive collateral attack, though success is subject to a
time limit in §2255(f)(3). A petitioner has only one year from
the date a constitutional right is first recognized by the Su-
preme Court. For Johnson that date was June 26, 2015. But
appellate permission under §2255(h) does not become possi-
ble until the Supreme Court itself declares the newly recog-
nized right to be retroactive. That was done in Welch, which
was issued on April 18, 2016. Less than three months re-
mained for prisoners to file, and appellate courts to consider,
applications seeking permission to file Johnson-based second

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6 No. 16-1793
or successive collateral attacks. Once any given application is
filed, the court of appeals has only 30 days to grant or deny
it. 28 U.S.C. §2244(b)(3)(D). It may be difficult to get access to
any given prisoner’s full record of convictions within that
time to see whether the residual clause matters to a sentence
enhancement. These tight deadlines led us to authorize any
second or successive collateral attack that arguably rested on
the residual clause. We relied on the fact that, if we author-
ized a new collateral proceeding, the district judge could
gather all of the necessary information and make an inde-
pendent decision under §2244(b)(4), a decision open to ple-
nary appellate review.
That’s what happened after Holt filed his §2255(h) appli-
cation. We authorized the second collateral attack after a
necessarily abbreviated review. The district judge then saw
that Holt’s claim for relief depends on the meaning of “bur-
glary” rather than the meaning of the Constitution, and she
denied the petition. The judge acted before the Supreme
Court released Mathis and before we issued Haney, so she
did not appreciate that Holt’s burglary conviction had in-
deed been misclassified when he was sentenced, but she un-
derstood that the argument being made was statutory rather
than constitutional and did not rest on Johnson or any other
retroactive rule of constitutional law. It follows that Holt is
not entitled to relief in this, his second §2255 proceeding.
Whether he might be entitled to relief under 28 U.S.C. §2241,
should he pursue that route in the district where he is con-
fined (he is being held at USP Canaan in Pennsylvania), is a
question we need not consider.
A FFIRMED

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