Stoldorf v. United States of America
Filing
9
OPINION entered by Judge Sue E. Myerscough on 5/1/2017. Petitioner Jesse A Stoldorf's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, d/e 1 is DENIED. The Court GRANTS a certificate of appealability. This case is CLOSED. (MAS, ilcd)
E-FILED
Tuesday, 02 May, 2017 10:53:18 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JESSE A. STOLDORF,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 16-2203
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Petitioner Jesse A.
Stoldorf’s Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255(f)(3) (d/e 1). Because Petitioner is
not entitled to relief under Johnson v. United States, 135 S. Ct.
2551 (2015), the Motion is DENIED. The Court GRANTS a
certificate of appealability.
I. BACKGROUND
In March 2005, a jury found Petitioner guilty of possession of
a firearm by a felon in violation of 18 U.S.C. § 922(g). The
Probation Office prepared a Presentence Investigation Report (PSR).
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United States v. Stoldorf, Case No. 04-20048 (d/e 37) (hereinafter,
Crim.). The PSR determined that Petitioner was an Armed Career
Criminal pursuant to 18 U.S.C. § 924(e) based on two 1994
burglary convictions in Montana (Mineral County District Court
Case Nos. C-637 and C-649-5) and a 1998 conviction in Illinois for
home invasion, residential burglary, and intimidation (Shelby
County Case No. 98-CF-49). Crim., PSR ¶¶ 25, 28, 29, 31.1
Neither the PSR nor the sentencing transcript indicate whether the
prior convictions qualified as predicate offenses under the
elements, enumerated, or residual clauses of the Armed Career
Criminal Act.
As an Armed Career Criminal, Petitioner faced a statutory
mandatory minimum of 15 years’ imprisonment to life
imprisonment. Crim., PSR ¶ 70 (citing 18 U.S.C. §§ 922(g),
924(e)(1)). Petitioner’s advisory sentencing guideline range was
235 to 293 months’ imprisonment. Crim., PSR ¶ 71. On July 5,
2005, former United States District Judge Michael P. McCuskey
It is unclear whether the sentencing court counted the home invasion,
residential burglary, or intimidation conviction as the third violent felony.
Petitioner focuses his argument on the residential burglary conviction.
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sentenced Petitioner to a term of 264 months’ imprisonment.
Crim., Judgment (d/e 39) (dated July 7, 2005).
Petitioner appealed, arguing only that the prosecutor violated
the Constitution by exercising a peremptory challenge on the basis
of race. United States v. Stoldorf, No. 05-3020, 2006 WL 2355906
(7th Cir. Aug. 15, 2006). The Seventh Circuit affirmed the
judgment and sentence. Id.
On June 24, 2016, Petitioner filed the Motion to Vacate, Set
Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255(f)(3) (d/e
1) at issue herein. The Government responded to the Motion (d/e
3), and Petitioner filed a Reply (d/e 4). On November 22, 2016, the
Court appointed counsel to represent Petitioner. On December 22,
2016, counsel filed a Supplemental Response (d/e 6), to which the
Government filed a response (d/e 7).
Petitioner argues he is entitled to relief because his two prior
Montana burglary convictions and the Illinois residential burglary
conviction do not qualify as violent felonies under the Armed
Career Criminal Act.
II. LEGAL STANDARD
A person convicted of a federal crime may move to vacate, set
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aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief
under § 2255 is an extraordinary remedy because a § 2255
petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Post-conviction relief under § 2255 is therefore “appropriate only
for an error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Harris v. United States, 366 F.3d
593, 594 (7th Cir. 2004) (internal quotation marks omitted).
III. ANALYSIS
An explanation of the Armed Career Criminal Act is necessary
to put Petitioner’s claim in context. Generally, the penalty for the
offense of being a felon in possession of a firearm, 18 U.S.C. §
922(g), is up to 10 years’ imprisonment. 18 U.S.C. § 924(a)(2).
However, if a defendant violates § 922(g) and has three previous
convictions for a violent felony or a serious drug offense, or both,
the Armed Career Criminal Act increases the sentence to a term of
imprisonment of not less than 15 years and up to life. 18 U.S.C.
§ 924(e)(1); Johnson, 135 S. Ct. at 2555.
The Act defines a violent felony as:
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[A]ny crime punishable by imprisonment for a term
exceeding one year . . . 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
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another [.]
18 U.S.C. § 924(e)(2)(B) (emphasis added). The underlined
portion is referred to as the “residual clause.” The other portions
are referred to as the “elements clause” (18 U.S.C. § 924(e)(2)(B)(i))
and the “enumerated clause” (the portion listing burglary, arson,
extortion, and offenses that involve the use of explosives). The
United States Supreme Court recently found the residual clause
unconstitutional. Johnson v. United States, 135 S. Ct. 2551, 2563
(2015) (holding that “imposing an increased sentence under the
residual clause of the Armed Career Criminal Act violates the
Constitution’s guarantee of due process”).
When determining whether a prior conviction qualifies as a
violent felony, courts generally apply the categorical approach,
meaning the court looks only to the fact of the conviction and the
statutory definition of the prior offense. Taylor v. United States,
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495 U.S. 575, 602 (1990). When determining whether a prior
conviction, such as burglary, qualifies under the enumerated
clause, the court compares the elements of the statute forming the
basis of the prior conviction with the elements of the generic crime
of burglary. See id. at 599; Descamps v. United States, 133 S. Ct.
2276, 2281 (2013). When the statute’s elements are the same or
narrower than those of the generic offense, the prior conviction
qualifies as a predicate offense under the Armed Career Criminal
Act. Taylor, 495 U.S. at 599.
In some instances, the statute forming the basis of the prior
conviction defines the offense more broadly than the generic
offense. Taylor, 495 U.S. at 599. That is, the “statute sets out one
or more elements of the offense in the alternative” and one
alternative matches the elements in the generic offense while
another alternative does not. Descamps, 133 S. Ct. at 2281. In
those cases, the court may apply the “modified categorical
approach,” which means that the court may consult a limited class
of documents to determine which alternative formed the basis of
the prior conviction. Id.; Shepard v. United States, 544 U.S. 13, 16
(2005) (the limited documents the court may consider when
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applying the modified categorical approach include the charging
document, written plea agreement, and the transcript of the plea
hearing). The court then compares the elements of the crime of
conviction with the elements of the generic crime. Descamps, 133
S. Ct. at 2281.
The modified categorical approach is only appropriate where a
statute is divisible into qualifying and non-qualifying offenses and
does not apply to a crime that has a single, indivisible set of
elements. Descamps, 133 S. Ct. at 2282. When a statute lists
various factual means of committing a single element, the modified
categorical approach does not apply. Mathis v. United States, 136
S. Ct. 2243, 2248 (2016).
For example, the Supreme Court recently held in Mathis that
Iowa’s burglary statute was broader than generic burglary—which
requires unlawful entry into a building or structure—because the
Iowa statute “reaches a broader range of places: ‘any building,
structure, [or] land, water or air vehicle.’” Id. at 2250 (quoting
Iowa Code § 702.12 (2013)) (emphasis in original). The Court
found that those listed locations were not alternative elements but
constituted alternative means of committing the single crime of
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burglary. Id. (“In short, the statute defines one crime, with one set
of elements, broader than generic burglary—while specifying
multiple means of fulfilling its locational element, some but not all
of which (i.e., buildings and other structures, but not vehicles) . . .
satisfy the generic definition”). The Supreme Court held that,
because the elements of the Iowa statute were broader than the
elements of a generic burglary, the prior convictions did not qualify
as predicate offenses under the Armed Career Criminal Act. Id. at
2257.
In this case, Petitioner argues that the elements of Montana’s
burglary statute and Illinois’s residential burglary statute are
broader than those of a generic burglary and, therefore, the
convictions do not qualify as crimes of violence. Petitioner seeks
relief pursuant to Johnson, 135 S. Ct. 2551, which invalidated the
residual clause of the Armed Career Criminal Act, so that his claim
will be timely. See Welch v. United States, 136 S. Ct. 1257, 1268
(2016) (holding that “Johnson announced a substantive rule that
has retroactive effect in cases of collateral review”).
The Government argues that Petitioner’s claim is actually
based on Mathis, not Johnson, and a claim under Mathis is
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untimely. The Government also asserts that Petitioner cannot
bootstrap his Mathis claim to an imaginary Johnson claim.
Finally, the Government argues that the prior offenses still qualify
Petitioner as an Armed Career Criminal.2
A one-year period of limitation applies to § 2255 petitions. 28
U.S.C. § 2255(f). The one-year period begins to run from the latest
of:
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through
the exercise of due diligence.
The Government also argues that Petitioner has procedurally defaulted any
challenge to his Armed Career Criminal designation.
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28 U.S.C. § 2255(f)(1)-(4). The timeliness of each claim must be
considered independently. Davis v. United States, 817 F.3d 319,
327 (7th Cir. 2016).
In this case, the only possible date from which the one-year
period began to run for Petitioner’s claim is the date provided
under § 2255(f)(3). The other provisions do not apply because
Petitioner’s conviction became final in 2006 (and this Motion was
not filed within one year), Petitioner does not allege any
governmental action prevented him from making a motion, or that
he recently discovered, through the exercise of due diligence, facts
supporting the claim.
Under Section 2255(f)(3), the one-year period begins to run on
the date on which the right asserted was initially recognized by the
Supreme Court. As noted above, on June 26, 2015, the United
States Supreme Court decided Johnson, 135 S. Ct. 2551. The
Johnson decision announced a new substantive rule of
constitutional law that the Supreme Court has made retroactive on
collateral review. Welch, 136 S. Ct. at 1257; see also Dodd v.
United States, 125 S. Ct. 2478, 2482 (2005) (providing that the
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one-year period runs from the ruling recognizing the right
asserted, not the date the right was found to be retroactive).
Petitioner filed his § 2255 Motion on June 24, 2016.
Therefore, if Petitioner is, in fact, bringing a claim under Johnson,
the claim is timely.
Petitioner argues that his Montana and Illinois burglary
convictions do not qualify as generic burglaries, relying primarily
on Mathis, 136 S. Ct. 2243. Petitioner concedes that Mathis did
not restart the one-year time period under 28 U.S.C. § 2255(f)(3)3
(Supp. Resp. at 9 (d/e 6)), but he argues that his claim is timely
under Johnson. Specifically, Petitioner argues that, because
current law (Mathis) indicates that the burglaries no longer qualify
as violent felonies under the enumerated clause of the Armed
Several cases have held that Mathis does not restart the one-year period
under § 2255(f)(3) because the Supreme Court did not recognize a new right.
See Davis v. United States, Nos. 2:13-CR-46-JRG-8, 2:16-CV-363-JRG, 2016
WL 7234762, at *2 (E.D. Tenn. Dec. 13, 2016) (holding that Mathis “involved
application of the categorical approach first adopted by the Supreme Court in
Taylor and refined in the Descamps decision to a new set of facts” and did not
articulate a new right for purposes of § 2255(f)(3)); Dimott v. United States,
Nos. 2:06-cr-26-GZS, 2:16-cv-347-GZS, 2016 WL 6068114, at *3 (D. Maine
Oct. 14, 2016) (Mathis does not trigger a new one-year period for habeas relief
under § 2255(f)(3)), appeal filed; but see Staples v. True, No. 16-cv-1355-DRH,
2017 WL 935895, *3 (S.D. Ill. March 8, 2017) (involving a motion brought
under 28 U.S.C. § 2241 and stating, in what appears to be dicta, that the
petitioner may fail in showing that relief under § 2255 is inadequate because
the petitioner was still within a year of the date Mathis was decided).
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Career Criminal Act, the only possible basis to find that the
convictions qualify as predicate offenses is under the residual
clause, which the Supreme Court found unconstitutional in
Johnson.
Petitioner further argues that the Seventh Circuit’s decision
in Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016)
recognizes that Petitioner’s Johnson claim is appropriate.
Petitioner also notes that courts in other jurisdictions have held
that a § 2255 Motion is timely and appropriately founded on
Johnson where the record does not indicate whether the prior
convictions constituted Armed Career Criminal predicates under
the elements, enumerated, or residual clause.
The Government responds that Petitioner’s Montana and
Illinois convictions qualified as predicate offenses under the
enumerated clause when Petitioner was sentenced. The
Government further argues that Petitioner’s reliance on Dawkins is
misplaced and that Dawkins actually supports the Government’s
position. Finally, the Government asserts that Holt v. United
States, 843 F.3d 720 (7th Cir. 2016) and Stanley v. United States,
827 F.3d 562 (7th Cir. 2016) demonstrate that Petitioner’s claim is
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not based on Johnson and Petitioner cannot bootstrap a Mathis
claim to an imaginary Johnson claim.
Courts in other jurisdictions have taken different approaches
to determine whether a claim is one brought under Johnson when
the record is not clear whether the prior convictions qualified as
violent felonies under the elements clause, enumerated clause, or
residual clause of the Armed Career Criminal Act. See United
States v. Carrion, --- F. Supp. 3d ---, 2017 WL 662484 (D. Nevada
Feb. 17, 2017) (citing cases). For example, some courts hold that
the court cannot look at current case law to determine whether the
residual clause was implicated in a defendant’s sentencing,
concluding that how the defendant was actually sentenced is what
matters:
If the defendant cannot show, as a factual matter, that
his sentencing judge would have been unable at the
time of sentencing to use one of the ACCA’s other
clauses, he cannot meet his burden to show that the
residual clause was implicated in his sentence and his
motion is thus based on Johnson’s invalidation of the
residual clause.
Carrion, --- F. Supp. 3d ---, 2017 WL 662484, at *3 & n. 24 (citing
cases).
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Other courts have found that, if there is some possibility that
the judge might have relied on the residual clause, the habeas
court can use current law to determine whether the residual
clause impacted the defendant’s sentencing. Carrion, --- F. Supp.
---, 2017 WL 662484, at *4-5 (adopting the second approach and
concluding that once a defendant shows that the judge might have
relied on the residual clause, he may rely on intervening case law
to show that his prior convictions do not qualify as violent offenses
under the remaining clauses); see also Maxwell v. United States,
No. 1:16CV00249 ERW, 2017 WL 690948, at *1 (E.D. Mo. Feb. 21,
2017) (noting that where a court cannot determine whether the
petitioner was sentenced under the residual clause of the Armed
Career Criminal Act, the better approach is to find relief available
because the court might have relied on the unconstitutional
residual clause).
The Seventh Circuit’s treatment of this issue dictates that
Petitioner’s claim cannot proceed. In Dawkins, the petitioner
sought leave to bring a successive § 2255 motion based on
Johnson. Dawkins, 809 F. 3d at 954 (also assuming that Johnson
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applied to the career offender guideline).4 The petitioner argued
that the sentencing judge’s reliance on the petitioner’s prior
conviction for burglary was invalid under Descamps. Id. at 954.
The Seventh Circuit held that the petitioner could not show that
his sentence violated Johnson because the sentence was not based
on the residual clause. Id.
In particular, the Seventh Circuit
considered the petitioner’s Illinois residential burglary conviction
and found that Illinois’s statute satisfied the ruling in Taylor and
met the generic definition of burglary, thereby qualifying as a crime
of violence under the enumerated clause. Id. The Seventh Circuit
denied authorization to file a successive § 2255 motion, noting that
the sentencing court did not need to resort to the residual clause
to determine whether the prior conviction for burglary qualified as
a crime of violence. Id.
While Dawkins suggests that this Court could use current
law to determine whether the residual clause might have been
The Supreme Court has recently ruled that Johnson does not apply to the
career offender guideline. Beckles v. United States, 137 S. Ct. 886, 890
(2017). Nonetheless, because the Armed Career Criminal Act’s “violent felony”
provision is nearly identical to the Sentencing Guidelines’ career offender
“crime of violence” provision, the Seventh Circuit has applied the same
interpretation to both provisions when determining whether a prior conviction
triggers the enhancement. United States v. Womack, 610 F.3d 427, 433 (7th
Cir. 2010).
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implicated when a petitioner was sentenced, the Seventh Circuit
more recently took a hard line approach to this issue. In Stanley
v. United States, 827 F.3d 562 (7th Cir. 2016), the petitioner
argued in his initial § 2255 motion that his prior convictions no
longer qualified as serious drug crimes or violent felonies under
the career offender guideline in light of Johnson. The Seventh
Circuit, assuming that Johnson applied to the Sentencing
Guidelines, concluded that the petitioner misunderstood the effect
of Johnson. The Court rejected the assertion that Johnson
reopened “all questions about the proper classification of prior
convictions under the Guidelines and the Armed Career Criminal
Act.” Stanley, 827 F.3d at 564. Instead, the Seventh Circuit noted
that the “sole holding of Johnson [was] that the residual clause is
invalid” and that Johnson did not affect the enumerated clause or
the elements clause of the Guidelines or the Armed Career
Criminal Act. Id.
In particular, the Seventh Circuit considered the petitioner’s
conviction for aggravated battery and noted that the district court
counted the conviction under the elements clause. Stanley, 827
F.3d at 565 (without indicating how the Seventh Circuit knew that
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the conviction counted under the elements clause). The court
found, however, that Johnson did not have anything to do with the
elements clause and, therefore, did not afford petitioner a new oneyear period to seek collateral relief on the theory that the elements
clause did not apply. The Stanley court also noted that:
Perhaps a prisoner could argue that he decided not to
press an argument about the elements clause at
sentencing, or on appeal, when the only consequence
would have been to move a conviction from the elements
clause to the residual clause. Then it would be possible
to see some relation between Johnson and a contention
that the conviction has been misclassified, for the line of
argument could have been pointless before Johnson but
dispositive afterward. But this is not the sort of
argument that Stanley makes.
Id. at 565. Instead, the petitioner argued that he might have pled
guilty to aggravated battery under a part of the battery statute that
penalizes insulting conduct. The Seventh Circuit stated that, in
that case, the offense would not constitute a crime of violence
under the elements clause or the residual clause, “so this
possibility, too, is unaffected by Johnson.” Id. at 565; see also id.
at 565-66 (also examining Descamps and the divisibility of statutes
but noting that the contention that the petitioner may have been
convicted under the part of the statute that lacks an element based
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on the use of force “is unrelated to Johnson and so does not
authorize a belated collateral attack”).
Similarly, the Seventh Circuit held in Holt v. United States,
843 F.3d 720 (7th Cir. 2016) that nothing in Johnson affects the
proper treatment of burglary convictions and, therefore, the
petitioner’s second collateral attack could not rest on Johnson.5
The Holt court noted the Stanley court’s reference to defendants
possibly refraining from objecting to convictions under the
elements clause because the convictions could still be treated as
violent felonies under the residual clause. Holt, 843 F.3d at 722.
The Seventh Circuit found this possibility had nothing to do with
Holt’s situation, however, because his burglary classification was
classified under the “burglary clause,” and nothing in Johnson,
Welch, or Stanley affected the proper treatment of burglary
convictions. Id. at 723.
These cases demonstrate that Petitioner cannot use Johnson
to bring his claim under Mathis that the elements of Montana’s
The Court recognizes that Holt involved a request to file a successive § 2255
motion, which requires that the petitioner show a “new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable” and that Johnson met that requirement while
Mathis did not. See Holt, 843 F.3d at 722 (quoting 28 U.S.C. § 2255(h)(2)).
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burglary statute and Illinois’s residential burglary statute are
broader than those of a generic burglary. Moreover, the few
district courts within the Seventh Circuit to address this issue
have interpreted Stanley and other Seventh Circuit cases as
holding that petitioners cannot “take a back door in to the
unconstitutional residual clause by attempting to argue that their
predicate convictions could not satisfy the elements or force
clauses and instead should have initially been characterized under
the residual clause.” Wilson v. United States, No. 15-cv-1086,
2017 WL 1058780, at * 4 (S.D. Ill. Mar. 21, 2017) (involving
predicate drug offenses); see also Hall v. United States, No. 3:14cv-0110-MJR, 2017 WL 951415, at *5 (S.D. Ill. 2017) (interpreting
Stanley as “limit[ing] the scope of Johnson based challenges to
sentences under the ACCA or the Guidelines by finding that
Johnson challenges could only be made to sentences clearly given
under the residual clause as opposed to the elements or
enumerated clauses”); see also United States v. Smith, No. 16 C
6606, 2017 WL 1321110, at *2 & n. 3 (N.D. Ill. Apr. 3, 2017)
(wherein the court assumed for the sake of argument that Johnson
opened the door to the petitioner’s habeas claim and invited
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inquiry into whether the prior offenses qualify without the residual
clause but also noted that Stanley casts doubt on whether that is
the correct assumption).
Perhaps Stanley and Holt could be distinguished on the basis
that the Seventh Circuit found that the petitioners in those cases
were sentenced under the elements clause (Stanley) and the
enumerated clause (Holt) while here the sentencing court did not
indicate whether Petitioner was sentenced under the enumerated
clause or the residual clause. However, the case law in effect when
the Court sentenced Petitioner suggests that Petitioner’s burglary
convictions qualified as predicate offenses under the enumerated
clause, and the Court could find no cases where Illinois residential
burglary or Montana burglary convictions qualified under the
residual clause of the Armed Career Criminal Act. See United
States v. Tenderholt, 149 F. App’x 805 (10th Cir. 2005) (finding the
defendant’s 19966 Montana burglary convictions qualified as
violent felonies under the enumerated clause of the ACCA); United
Petitioner was convicted of burglary in Montana in 1994. The burglary
statute in effect in 1994 was identical to the statute in effect in 1996. See
Mont. Code Anno., § 45-6-204 (1993) (d/e 6, p. 24); Mont. Code Anno., § 456-204 (1998) (d/e 6 p. 25).
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States v. King, 62 F.3d 891, 896 (7th Cir. 1995) (finding that the
elements of Illinois residential burglary7 correspond to the
elements of a generic burglary and qualify as violent felonies under
§ 924(e)). In addition, the Seventh Circuit places the burden on
the petitioner to show that he is entitled to habeas relief, and
Petitioner has not shown that his prior convictions may have
qualified as predicate offenses under the residual clause. See, e.g.,
Stanley, 827 F.3d at 566 (“As the proponent of collateral review,
Stanley had to produce evidence demonstrating entitlement to
relief.”)
While this Court believes the better approach is to conclude
that Johnson opens the door to Petitioner’s claim—in which case
this Court would likely find that the claim is not procedurally
defaulted and that, at the very least, the Montana burglary statute
is not divisible and is broader than generic burglary—the Court is
constrained by the holdings of Stanley and Holt. Consequently,
this Court cannot grant Petitioner relief under Johnson, and his
Motion must be denied.
The Illinois residential burglary statute discussed in the King case is
identical to the 1998 version of the Illinois residential burglary statute that
formed the basis for Petitioner’s conviction. See 720 ILCS 5/19-3(a) (1998).
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IV. CERTIFICATE OF APPEALABILITY
If Petitioner seeks to appeal this decision, he must first obtain
a certificate of appealability. See 28 U.S.C. § 2253(c) (providing
that an appeal may not be taken to the court of appeals from the
final order in a § 2255 proceeding unless a circuit justice or judge
issues a certificate of appealability). A certificate of appealability
may issue only if Petitioner has made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Here, the Court finds sua sponte that Petitioner has made a
substantial showing of the denial of a constitutional right because,
if Johnson opens the door to Petitioner’s claim, Petitioner would be
entitled to relief. Therefore, a certificate of appealability is
GRANTED on the issue of whether Johnson applies to Petitioner’s
case and permits an inquiry into whether Petitioner’s Montana
convictions qualify as predicates under the Armed Career Criminal
Act without the residual clause.
V. CONCLUSION
For the reasons stated, Petitioner Jesse A. Stoldorf’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
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by a Person in Federal Custody (d/e 1) is DENIED. The Court
GRANTS a certificate of appealability. This case is CLOSED.
ENTER: May 1, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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