Katrell Morris v. USA
Filing
Filed opinion of the court PER CURIAM. 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. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge, concurring. [6764300-1] [6764300] [16-2407]--[Edited 07/01/2016 by MM to add language regarding concurring judge.]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2407
KATRELL B. MORRIS,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________
On Motion for an Order Authorizing
the District Court to Entertain a Second or Successive
Motion for Collateral Review
____________________
SUBMITTED JUNE 9, 2016 — DECIDED JULY 1, 2016
____________________
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
PER CURIAM. Katrell Morris has filed an application pursu‐
ant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a
successive motion to vacate under § 2255. Morris was sen‐
tenced as an armed career criminal under 18 U.S.C. § 924(e)
and now wants to challenge his sentence under Johnson v.
United States, 135 S. Ct. 2551 (2015), which held that the resid‐
ual clause of the Armed Career Criminal Act is unconstitu‐
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tionally vague. The Supreme Court has made Johnson retroac‐
tive. Welch v. United States, 136 S. Ct. 1257 (2016). Morris has
made a prima facie showing that he may be entitled to relief.
Morris proposes to challenge only one of his three predi‐
cate offenses: his conviction for attempted robbery in Illinois,
720 ILCS 5/8‐4(a), 18‐1(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in its response that this court determined in an unpublished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.1(B)(iii). United States v. Gra‐
nados‐Marin, 83 F. App’x 834, 837 (7th Cir. 2003). But that de‐
cision is nonprecedential. Moreover, to determine whether an
attempt offense constitutes a violent felony, a court must ex‐
amine how state courts have applied the general attempt stat‐
ute to the particular crime attempted. James v. United States,
550 U.S. 192, 197, 202–03 (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 in‐
terpreted 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.
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HAMILTON, Circuit Judge, concurring. The surge in applica‐
tions under 28 U.S.C. § 2244(b)(3) after Johnson v. United States,
135 S. Ct. 2551 (2015), is raising questions about whether to
treat as violent felonies prior convictions for attempts to com‐
mit crimes that would, if completed, clearly be violent felonies
under the surviving elements clause of the definition in 18
U.S.C. § 924(e)(2)(B). I have voted to grant this application be‐
cause I am not yet certain it should be denied. A fair decision
on its merits requires more time and attention than the 30
days allowed to us by statute, and an erroneous denial would
essentially be final. But I am skeptical about the applicant’s
prospects for relief. A brief explanation of my thinking may
help the parties develop the issues in this and similar cases
that will proceed in district courts.1
Attempt requires intent to commit the completed crime
plus a substantial step toward its completion. We are granting
Mr. Morris’s application on the theory that it is possible to
commit attempted robbery in Illinois without having actually
used or threatened to use physical force against another per‐
son or his property. See, e.g., People v. Terrell, 459 N.E.2d 1337,
1341 (Ill. 1984) (defendant takes substantial step toward rob‐
bery when he possesses materials necessary to carry out crime
at or near the place planned for its commission). The key point
1 Most earlier litigation about attempt offenses under the Armed Career
Criminal Act has involved the residual clause that was struck down in
Johnson. See James v. United States, 550 U.S. 192, 197 (2007) (attempted bur‐
glary under Florida law was violent felony under residual clause); United
States v. Collins, 150 F.3d 668, 671 (7th Cir. 1998) (same under Wisconsin
law); United States v. Davis, 16 F.3d 212 (7th Cir. 1994) (same under Illinois
law). Burglary has always posed challenges under ACCA because even
the completed offense has not qualified as a violent felony under the ele‐
ments clause.
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in this theory is that the substantial step toward the complete
crime need not itself be a violent step. The argument in favor
of Morris’s application is that actual, attempted, or threatened
use of physical force is thus not an essential element of the
attempt crime. See 18 U.S.C. § 924(e)(2)(B).
The government has argued in opposing this application
that a conviction for attempting to commit a crime that, if
completed, would be a violent felony should necessarily qual‐
ify as a violent felony under the elements clause of the defini‐
tion. Even though the substantial step(s) may have fallen
short of actual or threatened physical force, the criminal has,
by definition, attempted to use or threaten physical force be‐
cause he has attempted to commit a crime that would be vio‐
lent if completed. That position fits comfortably within the
language of the elements clause of the definition. It surely fits
within the intended scope of the Armed Career Criminal Act.
Consider, for example, a person who attempts murder by
constructing an explosive device intended to destroy a federal
building, or by waiting with a loaded sniper rifle for the in‐
tended target of a murder to come within range. Neither
crime involves actual use or threats of physical force, but in
both the criminal intends to use such force and takes substan‐
tial steps toward doing so. That seems to me as if an element
of the attempt crime is the attempted use of physical force.
As for attempted robbery, consider our decision in United
States v. Muratovic, 719 F.3d 809, 816 (7th Cir. 2013), where the
conspirators planned to rob a shipment of illegal drug money.
The conspirators planned the robbery carefully, conducted
surveillance and collected weapons, duct tape, and disguises,
but did not actually come to the point of threatening the target
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of the robbery with physical force. We had no difficulty find‐
ing a factual basis for the attempt charge. I suspect the Con‐
gress that enacted ACCA would have wanted the courts to
treat such attempts at violent felonies as violent felonies un‐
der the Act.
As a matter of statutory interpretation, an attempt to com‐
mit a crime should be treated as an attempt to carry out acts
that satisfy each element of the completed crime. That’s what is
required, after all, to prove an attempt offense. If the com‐
pleted crime has as an element the actual use, attempted use,
or threatened use of physical force against the person or prop‐
erty of another, then attempt to commit the crime necessarily
includes an attempt to use or to threaten use of physical force
against the person or property of another. The alternative
view would seem to require that we treat as a non‐violent fel‐
ony even a conviction for attempted murder. Imagine the ex‐
plosive device or waiting sniper described above. Even if the
particular attempt involved firing a shot that missed, the al‐
ternative view would find no violent felony because violence
is not an element of the attempt crime.
Or so at least the government has argued here, though it
cites only non‐precedential decisions of this and other cir‐
cuits. Because of the 30‐day time limit for our decision under
28 U.S.C. § 2244(b)(3) and the low standard for granting an
application based on “a prima facie showing,” I think the best
course for now, in this and similar cases where application of
ACCA depends on an attempt conviction, is to grant the ap‐
plication to allow further development of the attempt issue in
the district courts.
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