Jordan v. USA

Filing 13

ORDER REGARDING 28 U.S.C. § 2255 MOTION: The movant's second 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action 08-CR-10-LRR) is denied. A certificate of appealability will not issue. The movant's 3 Pro Se Motion to Hold Case in Abeyance is denied as moot. Signed by Judge Linda R Reade on 09/15/2017. (copy w/NEF mailed to Pltf) (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

MELVIN JORDAN, III,
Movant,

No. C15-0105-LRR
No. CR08-0010-LRR

vs.
ORDER REGARDING
28 U.S.C. § 2255 MOTION

UNITED STATES OF AMERICA.

I. INTRODUCTION
This matter appears before the court on the movant’s second motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1), which he
obtained authorization to file. The movant filed such motion on September 29, 2015. In
his second § 2255 motion, the movant claims that he is entitled to relief under the recent
United States Supreme Court decision in Johnson v. United States, ___ U.S. ___, 135 S.
Ct. 2551 (2015). The government disputes that the movant is entitled to relief under 28
U.S.C. § 2255.
II. FACTS
On March 12, 2008, the movant pleaded guilty to being a felon in possession of
firearms in violation of 18 U.S.C. §§ 922(g)(1) & 924(e)(1). The court ordered a presentence report to be prepared. The parties entered into a post-plea agreement (criminal
docket nos. 46-5 & 53-3). The parties filed sentencing memoranda (criminal docket nos.
46 & 47), which included relevant state court documents concerning the movant’s prior
convictions. On September 3, 2008, the court calculated a sentencing guidelines range of
188 to 235 months imprisonment based on a total adjusted offense level of 31 and a

criminal history category VI and sentenced the movant to a term of 169 months
imprisonment, which was the high end of the new range after departing downward from
the high end of the applicable sentencing guidelines range. Subsequently, the court relied
on Federal Rule of Criminal Procedure 35(b) to reduce the movant’s sentence to 109
months imprisonment.1
III. LEGAL STANDARD
A prisoner in custody under sentence of a federal court is able to move the
sentencing court to vacate, set aside or correct a sentence. See 28 U.S.C. § 2255(a). To
obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) “that the
sentence was imposed in violation of the Constitution or laws of the United States”;
(2) “that the court was without jurisdiction to impose such sentence”; (3) “that the sentence
was in excess of the maximum authorized by law”; or (4) “[that the judgment or sentence]
is otherwise subject to collateral attack.” Id.; see also Hill v. United States, 368 U.S. 424,
426-27 (1962) (listing four grounds upon which relief under 28 U.S.C. § 2255 may be
claimed); Watson, 493 F.3d at 963 (same); Lee v. United States, 501 F.2d 494, 499-500
(8th Cir. 1974) (clarifying that subject matter jurisdiction exists over enumerated grounds
within the statute); Rule 1 of the Rules Governing Section 2255 Proceedings (specifying
scope of 28 U.S.C. § 2255). If any one of the four grounds is established, the court is
required “to vacate and set aside the judgment and [it is required to] discharge the prisoner
or resentence him or grant a new trial or correct the sentence as may appear appropriate.”
28 U.S.C. § 2255(b).
1

The court notes that the movant’s sentence is below 120 months imprisonment, and
a sentence is illegal for purposes of 28 U.S.C. § 2255 if it was “imposed without, or in
excess of, statutory authority.” Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir.
2011) (en banc). Relief under 28 U.S.C. § 2255 is inappropriate where the same sentence
“could be reimposed were [the movant] granted the § 2255 relief he requests.” Olten v.
United States, 565 F. App’x 558, 561 (8th Cir. 2014), cert. denied, ___ U.S. ___, 135 S.
Ct. 1893 (2015). Hence, the court finds that relief is unavailable because the movant is
not serving an illegal sentence.
2

When enacting 28 U.S.C. § 2255, Congress “intended to afford federal prisoners
a remedy identical in scope to federal habeas corpus.” Sun Bear, 644 F.3d at 704 (quoting
Davis v. United States, 417 U.S. 333, 343 (1974)) (internal quotation mark omitted).
Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for “all
claimed errors in conviction and sentencing.” Id. (quoting United States v. Addonizio, 442
U.S. 178, 185 (1979)). Rather, 28 U.S.C. § 2255 is intended to redress constitutional and
jurisdictional errors and, apart from those errors, only “fundamental defect[s] which
inherently [result] in a complete miscarriage of justice” and “omission[s] inconsistent with
the rudimentary demands of fair procedure.” Hill, 368 U.S. at 428; see also Sun Bear,
644 F.3d at 704 (clarifying that the scope of 28 U.S.C. § 2255 is severely limited and
quoting Hill, 368 U.S. at 428); United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)
(“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and
for a narrow range of injuries that could not have been raised for the first time on direct
appeal and, if uncorrected, would result in a complete miscarriage of justice.” (citing Poor
Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987))). A collateral challenge
under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. See
United States v. Frady, 456 U.S. 152, 165 (1982) (making clear that a motion pursuant to
28 U.S.C. § 2255 will not be allowed to do service for an appeal). Consequently, “an
error that may justify reversal on direct appeal will not necessarily support a collateral
attack on a final judgment.” Id. (quoting Addonizio, 442 U.S. at 184).
IV. ANALYSIS
The parties dispute whether the movant has enough prior qualifying convictions to
be subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(1). The movant argues that his three prior Iowa burglary convictions do
not qualify as predicate felonies and, therefore, his sentence exceeds the non-ACCA
statutory maximum. The government argues that relief is not available under 28 U.S.C.
§ 2255 because the movant failed to establish that the court relied on the residual clause
3

and it does not matter that, if sentenced today, the movant would no longer be subject to
the enhanced ACCA statutory range of punishment because Descamps and Mathis do not
provide an independent constitutional basis for attacking the movant’s sentence.
Under the ACCA, a defendant convicted of being a felon in possession of a firearm
faces more severe punishment if the defendant has three or more previous convictions for
a “violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA defines
a violent felony as any crime punishable by imprisonment for a term exceeding one year
that: (1) “has as an element the use, attempted use, or threatened use of physical force
against the person of another”; (2) “is burglary, arson, or extortion, involves use of
explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B). These definitions of “violent
felony” fall into three respective categories: (1) the elements clause; (2) the
enumerated-crimes clause; and (3) and the residual clause.
In Johnson, the Supreme Court addressed the constitutionality of the residual clause;
the Supreme Court held that “the indeterminacy of the wide-ranging inquiry required by
the residual clause both denies fair notice to the defendant and invites arbitrary
enforcement by judges.” ___ U.S. at ___, 135 S. Ct. at 2557. Shortly after invalidating
the residual clause, the Supreme Court concluded in Welch v. United States that Johnson
announced a substantive rule that applied retroactively on collateral review. ___ U.S. ___,
___, 136 S. Ct. 1257, 1265 (2016). Hence, under Johnson and Welch, a prior conviction
may not be used as a predicate ACCA offense if it falls under 18 U.S.C. § 924(e)(2)(B)’s
invalidated residual clause.
The Supreme Court, however, clarified that the ACCA’s other two clauses, namely,
the elements clause and the enumerated-crimes clause, remain viable. See Johnson, ___
U.S. at ___, 135 S. Ct. at 2563 (“Today’s decision does not call into question application
of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA’s]
definition of a violent felony.”); accord United States v. Sykes, 844 F.3d 712, 716 (8th
4

Cir. 2016). Thus, application of Johnson and Welch negates the use of a felony unless it
qualifies as an ACCA predicate without relying on the residual clause. “[E]ven if a
defendant’s prior conviction was counted under the residual clause, courts can now
consider whether that conviction counted under another clause of the ACCA.” In re
Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (citing Welch, ___ U.S. at ___, 136 S. Ct.
at 1268). The movant must prove that he was sentenced using the residual clause and that
the use of that clause made a difference in the sentence. See id. at 1273; see also Stanley
v. United States, 827 F.3d 562, 566 (7th Cir. 2016) (stating that a “proponent of collateral
review” must “produce evidence demonstrating entitlement to relief”); In re Cooks, No.
16-14444-J, 2016 U.S. App. LEXIS 23767, *8 n.2, (11th Cir. Aug. 9, 2016) (emphasizing
that burden is on movant); Holloway v. United States, 960 F.2d 1348, 1355 (8th Cir.
1992) (citing Kress v. United States, 411 F.2d 16, 20-21 (8th Cir. 1969), for the
proposition that the burden of proof is on petitioner in § 2255 proceeding); Day v. United
States, 428 F.2d 1193, 1196 (8th Cir. 1970) (providing that petitioner bears burden of
proof on each ground asserted in § 2255 motion); Taylor v. United States, 229 F.2d 826,
832 (8th Cir. 1956) (“Because the statutory proceeding is a collateral attack upon the
judgment of conviction, the burden is on the [movant] to establish a basis for relief under
some one or more of the grounds set forth in [§ 2255].”). If the court cannot tell whether,
at sentencing, the movant’s prior convictions qualified pursuant to the residual clause,
which would render his sentence subject to being challenged under Johnson, or whether
they qualified pursuant to the elements clause or the enumerated-crimes clause, which
would not render his sentence subject to being challenged under Johnson, the court must
deny relief under 28 U.S.C. § 2255. See In re Moore, 830 F.3d at 1273; accord In re
Hires, 825 F.3d 1297, 1303 (11th Cir. 2016). So, if, at the time of sentencing, the
movant’s burglary convictions qualified as a violent felonies under the enumerated-crimes
clause (even if it also qualified under the residual clause), the resulting sentence is not
subject to attack. See In re Hires, 825 F.3d at 1303; accord United States v. Gabrio, No.
5

01-CR-165, 2017 U.S. Dist. LEXIS 122242, at *9 (D. Minn. Aug. 2, 2017); Traxler v.
United States, No. 16-CV-747, 2016 U.S. Dist. LEXIS 117119 (W.D. Mich. Aug. 31,
2016); Ziglar v. United States, No. 16-CV-463, 2016 U.S. Dist. LEXIS 105955 (M.D.
Ala. Aug. 11, 2016). It makes no difference whether the movant’s burglary convictions
would count as a predicate if the court sentenced the movant today. See In re Hires, 825
F.3d at 1303 (explaining that “Johnson does not serve as a portal to assert a Descamps
claim”); see also United States v. Taylor, 672 F. App’x 860, 861-64 (10th Cir. 2016)
(determining that Johnson did not impact sentence imposed because prior burglary
convictions qualified under enumerated-crimes clause and Mathis did not announce a new
rule that is retroactively applicable to cases on collateral review).2 But see United States

2

The court notes that the Eighth Circuit Court of Appeals has not directly addressed
the relationship between Johnson and Descamps and/or Mathis with respect to an initial
§ 2255 motion. It, however, has addressed Mathis in the context of authorizing a second
or successive § 2255 motion. See, e.g., Davis v. United States, No. 16-2293, Eighth
Circuit Entry ID 4518847 (8th Cir. Mar. 31, 2017) (unpublished) (“At the time of Davis’s
sentencing [on April 16, 2010], it was settled in the Eighth Circuit that third-degree
burglary in Iowa was a generic burglary and thus a violent felony under the enumeratedoffenses clause of 18 U.S.C. § 924(e). United States v. Stevens, 149 F.3d 747, 749 (8th
Cir. 1998); United States v. Austin, 915 F.2d 363, 368 (8th Cir. 1990). Johnson v. United
States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016),
addressed only the residual clause of § 924(e). Davis’s claim that his sentence should have
not been enhanced based on the enumerated-offenses clause does not rely on a new rule
of constitutional law made retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable. See 28 U.S.C. § 2255(h), 2244(b)(2). Mathis v. United
States, 136 S. Ct. 2243 (2016), did not announce a new rule of constitutional law.”);
Howard v. United States, No. 16-2335, Eighth Circuit Entry ID 4432899 (8th Cir. Aug.
2, 2016) (unpublished) (“The record available to this court for expedited consideration
does not show clearly whether the sentencing court found that movant was an armed career
criminal based on the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) or based on the
enumerated clause of that section. If movant was sentenced based on the residual clause,
then the new rule of constitutional law announced in Johnson and made retroactive by
Welch v.United States, 136 S. Ct. 1257 (2016), supports a second or successive motion.
If movant was sentenced based on the enumerated clause, then the decision in Mathis v.
(continued...)
6

v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (holding that, “when an inmate’s sentence
may have been predicated on application of the now-void residual clause and, therefore,
may be an unlawful sentence under the holding in [Johnson], the inmate has shown that
he ‘relies on’ a new rule of constitutional law within the meaning of 28 U.S.C. §
2244(b)(2)(A).”).
The movant’s sentence is not called into question by Johnson because the court did
not need to rely on the residual clause when it determined that the movant qualified as an
armed career criminal. Rather, the court could have relied on the enumerated-crimes
clause because it includes the specific crime of burglary and the elements clause because

2

(...continued)
United States, 136 S. Ct. 2243 (2016), does not support a second or successive motion,
because Mathis did not announce a new rule of constitutional law.”); Jordan v. United
States, No. 16-2507, Eighth Circuit Entry ID 4432940 (8th Cir. Aug. 2, 2016)
(unpublished) (same); Luker v. United States, No. 16-2311, Eighth Circuit Entry ID
4433198 (8th Cir. Aug. 2, 2016) (unpublished) (same); Zoch v. United States, No.
16-2289, Eighth Circuit Entry ID 4432889 (8th Cir. Aug. 2, 2016) (unpublished) (same);
Sutton v. United States, No. 16-2278, Eighth Circuit Entry ID 4415705 (8th Cir. June 22,
2016) (unpublished) (concluding that authorization to file a second or successive motion
for relief under § 2255 should be denied where petitioner asserted that, under the Supreme
Court’s decision in Johnson and its expected decision in Mathis, his prior Missouri
conviction for Second Degree Burglary under Mo. Rev. Stat. § 569.170 could no longer
qualify as a valid predicate offense to support the enhancement of his sentence as an armed
career criminal and government asserted that petitioner was simply attempting to invoke
Johnson in an effort to resuscitate his previously-rejected claim under Descamps); Bradley
v. United States, No. 16-1528, Eighth Circuit Entry ID 4415661 (8th Cir. June 21, 2016)
(unpublished) (concluding that authorization to file a second or successive motion for relief
under § 2255 should be denied where petitioner asserted that his Illinois armed robbery
conviction, Illinois attempted armed robbery conviction and Illinois robbery conviction did
not constitute predicate felonies and, under the Supreme Court’s decision in Johnson and
its expected decision in Mathis, his prior Iowa third degree burglary conviction could no
longer qualify as a valid predicate offense to support the enhancement of his sentence as
an armed career criminal). Hence, the Eighth Circuit Court of Appeals’ approach appears
to be consistent with the notion that the holdings in Descamps and/or Mathis are unrelated
to the holding in Johnson.
7

it addresses robbery.

Indeed, although the court did not expressly state how the

convictions qualified as predicate felonies, it is apparent that the court determined that the
movant qualified as an armed career criminal because each of his burglary
convictions—one in 1986 and two in 1993—qualified as an enumerated offense, that is, a
“violent felony,” 18 U.S.C. § 924(e)(2)(B)(ii); see also PSR (criminal docket no. 55) at
¶¶ 41, 50, 62 & 68, and his robbery conviction qualified as a “violent felony” under the
elements clause, see 18 U.S.C. § 924(e)(2)(B)(i); see also PSR (criminal docket no. 55)
at ¶¶ 41 & 56. Regarding each enumerated offense, the undisputed facts in the movant’s
pre-sentence report indicate that: (1) the movant committed second degree burglary under
Iowa law by burglarizing a business; (2) the movant committed third degree burglary under
Iowa law by burglarizing a business; and (3) the movant committed second degree burglary
under Iowa law by burglarizing a residence. See PSR (criminal docket no. 55) at ¶¶ 50,
62 & 68.3 Concerning the movant’s Iowa first degree robbery conviction, the undisputed
3

In this collateral proceeding, the court finds that it is proper to consider the
unobjected-to portions of the pre-sentence report. Cf. Fed. R. Crim. P. 32(i)(3) (stating
that a court “may accept any undisputed portion of the presentence report as a finding of
fact”); United States v. Garcia-Longoria, 819 F.3d 1063, 1067 (8th Cir. 2016) (finding
that, because the pre-sentence report described prior offense conduct without stating its
sources, the failure to object to conduct described in the pre-sentence report relieved the
government of its obligation to introduce at sentencing the documentary evidence Taylor
or Shepard requires); United States v. Shockley, 816 F.3d 1058, 1063 (8th Cir. 2016)
(explaining that sentencing courts may not look to factual assertions within federal presentence reports—even if the defendant failed to object to the reports—where the presentence report indicates that the source of the information in the reports might have been
from a non-judicial source); United States v. Reliford, 471 F.3d 913, 916 (8th Cir. 2006)
(“[I]f the defendant fails to object to fact statements in the presentence investigation report
(PSR) establishing that a prior offense was a violent felony conviction, the government
need not introduce at sentencing the documentary evidence that Taylor and Shepard
otherwise require.”); United States v. Bell, 445 F.3d 1086, 1090 (8th Cir. 2006)
(concluding that court properly considered fact recital that defendant did not contest);
United States v. Paz, 411 F.3d 906, 909 (8th Cir. 2005) (explaining that facts in presentence report are deemed admitted unless the defendant objects to those facts); United
(continued...)
8

facts indicate that, while wearing clown masks, the movant and an accomplice robbed a
bartender while armed with a sawed-off shotgun. Id. at ¶ 56.
At the time of the movant’s sentencing in 2008, legal authority would have
supported the court’s use of the modified categorical approach to assess whether the
movant’s Iowa burglary convictions were violent felonies under the ACCA’s
enumerated-crimes clause.4 Moreover, the record, which includes the undisputed facts in

3

(...continued)
States v. Rodamaker, 56 F.3d 898, 902 (8th Cir. 1995) (stating that it is permissible to rely
on unobjected-to facts in the pre-sentence report); see also United States v. Chapman, No.
16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017) (Jordan, J., concurring) (observing
that the categorical approach impedes uniformity, interferes with the ability of courts to
ensure that repeat, violent offenders receive the most severe sentences, requires judges to
feign amnesia and leads to unusual questions of statutory interpretation). It is clear that
the dimensions of the issues addressed during a criminal trial or change of plea and during
a sentencing hearing are fundamentally different. Indeed, a sentencing hearing is not
undertaken to convict a defendant for the alleged violation, and, therefore, it does not give
rise to the full panoply of rights that are due a defendant at a trial or during a change of
plea. Similarly, it is clear that the dimensions of issues addressed during collateral
proceedings are fundamentally different. Having considered well-established precedent
that emphasizes finality, well-established precedent that reiterates the limited scope of
relief under § 2255 and the likelihood of disparate treatment among individuals seeking
collateral relief based on variables such as the number of offenses charged and convicted
of, the litigation strategies previously pursued or the course chosen at the trial and
appellate level and the availability of initial or subsequent collateral review, the court
declines to adopt an expansive view of the law or proceed with eyes shut when conducting
an ACCA analysis at this stage.
4

The court notes that, when addressing whether a defendant qualified as an armed
career criminal, the court considered whether burglary fell under the enumerated clause.
See, e.g., United States v. Goldworth, Case # 1:04-cr-00070-LRR (N.D. Iowa 2006)
(explaining in sentencing memorandum dated June 8, 2006 that 1979 Iowa conviction for
second degree burglary, 1984 Iowa conviction for second degree burglary and 2001 Iowa
conviction for third degree burglary qualified as three predicate violent felonies under 18
U.S.C. § 924(e)(2)(B)(ii), Taylor and Shepard); United States v. Griffith, Case # 1:01-cr00004-LRR (N.D. Iowa 2001) (agreeing that burglaries qualified as predicate violent
(continued...)
9

the pre-sentence report, indicates that all of the movant’s burglaries qualified as violent
felonies under the enumerated-crimes clause. Because the movant’s burglary convictions
qualified as a violent felonies under the still-valid enumerated-crimes clause of the ACCA,
it necessarily follows that the movant failed to demonstrate that his ACCA sentence is no
longer valid in light of Johnson.
In sum, three of the offenses at issue here—burglary—are enumerated offenses, and,
as such, they are unaffected by Johnson. See, e.g., In re Thomas, 823 F.3d 1345, 1348-49
(11th Cir. 2016) (concluding that collateral review based on Descamps was unavailable and
enhancement under the ACCA did not turn on the validity of the residual clause because
conviction for breaking and entering qualified as generic burglary under the enumerated

4

(...continued)
felonies under 18 U.S.C. § 924(e)(2)(B)(ii)). Such approach is consistent with the Eighth
Circuit Court of Appeals’ assertion that, as of April of 2010, “it was settled in the Eighth
Circuit that third-degree burglary in Iowa was a generic burglary and thus a violent felony
under the enumerated-offenses clause of 18 U.S.C. § 924(e).” Davis, No. 16-2293,
Eighth Circuit Entry ID 4518847 (citing Stevens, 149 F.3d at 749, and Austin, 915 F.2d
at 368); see also United States v. Voshell, No. 96-2943, 1997 U.S. App. LEXIS 29 (8th
Cir. Jan. 3, 1997) (per curiam) (concluding that a 1984 Iowa conviction for second degree
burglary qualified as a violent felony because the state charging paper and judgment
indicate that he pleaded guilty to a charge meeting Taylor’s generic definition of burglary);
United States v. Zoch, Case # 5:11-cr-04031-LTS (N.D. Iowa 2012) (admitting trial
information, plea agreement and judgment before deciding defendant qualified as an armed
career criminal under the applicable law); United States v. Jordan, Case # 1:08-cr-00010LRR (N.D. Iowa 2008) (considering post-plea agreement and permissible state court
documents concerning prior predicates for purposes of the ACCA). Even when referring
to the residual clause in the context of USSG §4B1.2, the Eighth Circuit Court of Appeals
hinged its holding in part on the generic definition of burglary in Taylor. See United States
v. Mohr, 407 F.3d 898, 901-02 (8th Cir. 2005); Stevens, 149 F.3d at 749; United States
v. Hascall, 76 F.3d 902, 904-06 (8th Cir. 1996); United States v. Carpenter, 11 F.3d 788,
791 (8th Cir. 1993). Further, nothing significantly undermined a court’s ability to rely on
burglary as an enumerated offense for purposes of the ACCA until the Supreme Court
decided Mathis, which held that, “[b]ecause the elements of Iowa’s burglary law are
broader than those of generic burglary, Mathis’s convictions under that law cannot give
rise to an ACCA sentence.” ___ U.S. at ___, 136 S. Ct. at 2257.
10

offenses clause); Gabrio, 2017 U.S. Dist. LEXIS 122242, at *9 (“Because [movant] had
at least three prior violent-felony convictions that would have qualified him for the ACCA
enhancement even in the absence of Johnson, he is not “rais[ing] a claim based on a right
newly recognized by the Supreme Court and made retroactively applicable on collateral
review.” (quoting United States v. Sonczalla, No. 07-CR-187, 2016 U.S. Dist. LEXIS
123522, 2016 WL 4771064, at *2 (D. Minn. Sept. 12, 2016)) (second alteration in
original)); United States v. Holt, No. 15-CV-11891, 2016 U.S. Dist. LEXIS 48063, at *9
(N.D. Ill. April 11, 2016) (concluding that Illinois burglary conviction constituted an
enumerated offense because it aligned with generic burglary as defined by the Supreme
Court in Taylor), aff’d, 843 F.3d 720 (7th Cir. 2016).

Further, one

offense—robbery—falls under the elements clause, and, consequently, it is unaffected by
Johnson.5 The movant’s sentence remains valid because the movant failed to demonstrate
that his Iowa burglary convictions did not qualify as violent felonies under the enumeratedcrimes clause and the court only relied on the residual clause. It matters not that, if the
court sentenced the movant today, Mathis would dictate a different sentence because the
movant is unable to apply rules of statutory construction that were not in effect at the time
he was sentenced. See Gabrio, 2017 U.S. Dist. LEXIS 122242, at *10 (citing United
States v. Moreno, No. 11-CR-178, 2017 U.S. Dist. LEXIS 29769, at *4 (D. Minn. Mar.
1, 2017)). Clearly, Mathis is the only mechanism through which to collaterally attack the

5

Regarding the movant’s Iowa first degree robbery conviction, Iowa Code section
711.2 states that “[a] person commits robbery in the first degree when, while perpetrating
a robbery, the person purposely inflicts or attempts to inflict serious injury, or is armed
with a dangerous weapon.” Cf. Golinveaux v. United States, Case # 6:16-cv-02032-LRR
(N.D. Iowa 2017) (holding that Iowa second degree robbery under Iowa Code sections
711.1(1), 711.3, 708.1(1) and 708.1(3) constitutes a “violent felony” for purposes of the
ACCA); United States v. Jones, 2016 U.S. Dist. LEXIS 104736 (D. Minn. August 8,
2016) (determining that documents submitted to employ modified categorical approach did
not permit a finding that Iowa first degree robbery conviction could serve as an ACCA
predicate offense).
11

movant’s armed career criminal designation, but relief is properly based only on Johnson
because Mathis did not announce a new rule that is retroactively applicable to cases on
collateral review.
V. CERTIFICATE OF APPEALABILITY
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may issue only if a movant has made a substantial showing of the denial of a constitutional
right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett v. United States,
211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th
Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523.
To make such a showing, the issues must be debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings. Cox, 133
F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also MillerEl, 537 U.S. at 335-36 (reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [movant
must show], at least, that jurists of reason would find it debatable whether the petition
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states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” See Slack,
529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the movant
failed to make the requisite “substantial showing” with respect to the claim that he raised
in his motion pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(2); Fed. R. App.
P. 22(b). Because he does not present a question of substance for appellate review, there
is no reason to grant a certificate of appealability.

Accordingly, a certificate of

appealability shall be denied. If he desires further review of his motion pursuant to 28
U.S.C. § 2255, the movant may request issuance of the certificate of appealability by a
circuit judge of the Eighth Circuit Court of Appeals in accordance with Tiedeman, 122
F.3d at 520-22.
VI. CONCLUSION
For the reasons discussed above, the movant’s sentence is not subject to being
challenged under Johnson. Accordingly, the movant’s second motion under 28 U.S.C. §
2255 is denied. Additionally, a certificate of appealability will not issue. The movant’s
motion to hold case in abeyance (civil docket no. 3) is denied as moot.
IT IS SO ORDERED.
DATED this 15th day of September, 2017.

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