YATES v. LEVANHAGEN
***PLEASE DISREGARD*** Entry Denying Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying Certificate of Appealability - For the reasons explained in this Entry, the amended motion of Steven Dotson ("Mr.Dotson") for relief pursua nt to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue. Judgment consistent with this Entry shall now issue. Signed by Judge William T. Lawrence on 3/9/2018.(JDC) Modified on 3/9/2018 (JDC).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA.
Case No. 1:14-cv-1648-WTL-MPB
Entry Denying Motion for Relief Pursuant to 28 U.S.C. § 2255
and Denying Certificate of Appealability
For the reasons explained in this Entry, the amended motion of Steven Dotson (“Mr.
Dotson”) for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of appealability should not issue.
I. The § 2255 Motion
Mr. Dotson was convicted of being a felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1), on January 10, 2012, after a bench trial in the United States District Court for the
Southern District of Indiana. United States v. Dotson, 1:11-cr-056-WTL-DML-1, Crim. Case,
Dkt. No. 43. He was sentenced to a term of 188 months to be followed by a 5 year term of
supervised release. The 188 month sentence was based on the Court’s finding that Mr. Dotson
was an armed career criminal under 18 U.S.C. § 924(e) (Armed Career Criminal Act)
(“ACCA”). Judgment was entered August 20, 2012. Crim Case, Dkt. No. 56. The Seventh
Circuit Court of Appeals affirmed the conviction on April 4, 2013. United States v. Dotson, 712
F.3d 369 (7th Cir. 2013). Mr. Dotson’s petition for writ of certiorari was denied by the United
States Supreme Court on October 7, 2013. Dotson v. United States, 134 S.Ct. 238 (2013).
The Court found Mr. Dotson to be an armed career criminal after finding that he had
three or more prior convictions that qualified as “violent felonies.” Those Indiana convictions
included burglary, armed robbery, dealing in cocaine, and attempted robbery. In his amended
motion to vacate under § 2255, Mr. Dotson claims that two of his predicate offenses, burglary
and attempted robbery, are not violent felonies under the ACCA. Dkt. No. 39; Dkt. No. 45. The
United States opposes his amended § 2255 motion.
As noted, throughout this litigation, Mr. Dotson has not challenged two of his four
predicate offenses: armed robbery and dealing in cocaine. In Mr. Dotson’s reply, Dkt. No. 54, for
the first time since this action was filed in 2014, he argues that his dealing in cocaine conviction
is not a serious drug felony conviction. Even if this argument had not been waived by being
raised only in the reply, the Court need not consider it on the merits because Mr. Dotson has
three other predicate violent felonies: burglary, armed robbery, and attempted robbery.
The ACCA “imposes a 15-year minimum sentence on defendants convicted of illegally
possessing a firearm,…who also have at least three prior convictions for a ‘violent felony’ or a
‘serious drug offense.’” United States v. Foster, 877 F.3d 343, 344 (7th Cir. 2017). “ACCA
defines ‘violent felony’ in relevant part as any felony that ‘is burglary.’ 18 U.S.C. §
924(e)(2)(B)(ii).” Id. “The term ‘burglary’ in § 924(e)(2)(B)(ii), however, refers only to crimes
that fit within ‘generic’ burglary, which the Supreme Court has defined as ‘an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit a
crime.’” Id. (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). “Determining whether
burglary under a given state’s law is a violent felony presents a categorical question that focuses
exclusively on the state crime’s elements and not on the facts underlying the conviction.” Id.
(citing Mathis v. United States, 136 S.Ct. 2243, 2248 (2016)). “The state crime’s elements must
be the same as, or narrower than, the elements of generic burglary, so that the crime covers no
more conduct than the generic offense.” Id.
The Seventh Circuit has determined that an Indiana Class C burglary conviction is a valid
predicate offense under § 924(e)(2)(B)(ii). United States v. Perry, 862 F.3d 620, 624 (7th Cir.
2017); Foster, 877 F.3d at 344 (“We recently held in United States v. Perry, 862 F.3d 620, 624
(7th Cir. 2017), that Indiana Class C burglary is a violent felony because it is at least as narrow
as generic burglary.”). Mr. Dotson’s burglary conviction in 1993, No. 49G06-9301-CF-007715,
was a C felony. Perry controls the outcome here.
In addition, with regard to the conviction of attempted robbery, the Seventh Circuit has
declared that the “law of the circuit” is “[w]hen a substantive offense would be a violent felony
under § 924(e) and similar statutes, an attempt to commit that offense also is a violent felony.”
Hill v. United States, 877 F.3d 717, 719 (7th Cir. 2017). This holding was foreshadowed in 2016
in United States v. Armour, 840 F.3d 904, 909, n. 3 (7th Cir. 2016) (noting that “[a]n attempt
conviction requires proof of intent to carry out all elements of the crime, including, for violent
offenses, threats or use of violence.”), and in Judge Hamilton’s concurring opinion in Morris v.
United States, 827 F.3d 696, 699 (7th Cir. 2016) (concluding that “an attempt to commit a crime
should be treated as an attempt to carry out acts that satisfy each element of the completed
crime.”). Mr. Dotson’s prior felony of attempted robbery qualifies as a valid predicate offense.
Mr. Dotson is not entitled to relief pursuant to 28 U.S.C. § 2255. The amended motion
for relief pursuant to § 2255 is therefore DENIED. Judgment consistent with this Entry shall
This Entry shall also be entered on the docket in the underlying criminal action, No.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that Mr. Dotson has
failed to show that “reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The
Court therefore DENIES a certificate of appealability.
IT IS SO ORDERED.
Electronically registered counsel
Steven Dotson, #09940-028
FCI Terre Haute
P. O. Box 33
Terre Haute, IN 47808
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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