LAW.coLAW.co

John W. DAWKINS, Applicant, v. UNITED STATES of America, Respondent

United States Court of Appeals for the Seventh Circuit2016-07-15No. No. 16-2683
829 F.3d 549

Summary

Holding. The court denied authorization and dismissed Dawkins's application for permission to file a successive § 2255 motion, holding that his Johnson claim is barred by the prior denial of a successive application and that Mathis v. United States does not provide an independent basis for authorization because it announces a rule of statutory interpretation rather than a retroactively applicable new constitutional rule.

John Dawkins, a federal prisoner sentenced as a career offender, sought permission to file a successive motion to vacate his sentence. He relied initially on Johnson v. United States, which struck down the residual clause in the Armed Career Criminal Act as unconstitutionally vague. His career-offender classification was based partly on an Illinois residential burglary conviction. The court had previously denied him permission to challenge his sentence under Johnson, having determined that Illinois residential burglary qualified as generic burglary of a dwelling under the sentencing guidelines.

Dawkins renewed his application, this time also invoking Mathis v. United States, a recent Supreme Court decision concerning Iowa's burglary statute. He argued that Illinois burglary statutes are similarly nondivisible and broader than generic burglary. However, the court concluded that even assuming Mathis created doubt about Illinois burglary convictions under career-offender guidelines, Dawkins was barred from bringing a successive Johnson claim because he had already been denied permission to file such a motion. The court also rejected Mathis as an independent basis for authorization, characterizing it as statutory interpretation rather than a new constitutional rule made retroactive by the Supreme Court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a prior denial of a successive motion under Johnson bars a renewed application based on the same vagueness challenge
  • Whether Mathis v. United States provides an independent basis for authorizing a successive § 2255 motion
  • The distinction between new constitutional rules made retroactive and intervening changes in statutory interpretation

Procedural posture

Dawkins applied for authorization to file a successive § 2255 motion pursuant to 28 U.S.C. § 2244(b)(3), having previously been denied permission to challenge his career-offender sentence under Johnson v. United States.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM.

John Dawkins has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a successive motion to vacate under § 2255. Dawkins, who was sentenced as a career offender, wants to challenge his sentence under Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. We assume for purposes of this opinion that Johnson also invalidates the similar residual clause in the career-offender guideline.

Dawkins was convicted of bank robbery, 18 U.S.C. § 2113(a), and using a firearm in furtherance of a crime of violence, id. § 924(c). He was sentenced as a career offender to 262 months’ imprisonment. His classification as a career offender rests on Illinois convictions for aggravated vehicular hijacking, 720 ILCS 5/18-4 (1993), and residential burglary, 720 ILCS 5/19-3 (1985). He previously has been denied permission to file a successive § 2255 motion under Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). See Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016). In denying the previous application, we concluded that residential burglary in Illinois is equivalent to generic burglary of a dwelling, which is enumerated as a crime of violence in the sentencing guidelines. See id. at 956; U.S.S.G. § 4B 1.2(a)(2).

Dawkins again asks permission to challenge his sentence under Johnson, but this time he also relies on the Supreme Court’s recent decision in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In Mathis, the Supreme Court considered Iowa’s burglary statute, which forbids entering “an occupied structure” without permission with the intent to commit a felony. Iowa Code § 713.1. “Occupied structure” is defined by Iowa as “any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value.” Id. § 702.12. The Supreme Court first explained that the statute is broader than “generic burglary,” which is enumerated as a violent felony in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). See Mathis, 136 S.Ct. at 2250-51. The Court next considered how Iowa courts interpret this statute and determined that the different locations are not alternative elements creating separate crimes, but instead are simply alternative means of violating a single locational element. See id. at 2250-51, 2255-56. So, the Court concluded, the district court’s reliance on a conviction for Iowa burglary cannot be saved by looking to charging papers and considering whether the defendant actually burglarized a building or dwelling; the statute is nondivisible and categorically not a violent felony. See id. at 2248-49, 2257-58.

Dawkins contends that Illinois’s burglary statutes are similarly nondivisible and broader than generic burglary. He points out that the general burglary statute applies to entries into “a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof,” 720 ILCS 5/19-1, and residential burglary can be committed by entering into a “house, apartment, mobile home, trailer, or other living quarters,” id. 5/2-6(b) (emphasis added). But even if Mathis does make a district court’s reliance on Illinois burglary suspect for purposes of the career-offender guideline or ACCA, which we do not decide now, Dawkins asks for permission to bring this claim as part of a larger claim under Johnson. He has already been denied permission to file a successive § 2255 motion based on Johnson, so this claim is barred by 28 U.S.C. § 2244(b)(1). See Brannigan v. United States, 249 F.3d 584, 586-89 (7th Cir. 2001); Bennett v. United States, 119 F.3d 470, 471-72 (7th Cir. 1997).

Dawkins argues in his reply that Mathis provides an independent basis for authorization. He cites Alexander v. United States, 121 F.3d 312 (7th Cir. 1997), for the proposition that any intervening change in the law would allow a successive application. This proposition clearly is not true, and Alexander does not say otherwise; only new rules of constitutional law, made retroactive by the Supreme Court, can provide a basis for authorization. See 28 U.S.C. §§ 2255(h)(2), 2244(b)(2)(A); Alexander, 121 F.3d at 314-15 (denying application because applicant did “not point to any new rule made retroactive by the Supreme Court and [did] not have new evidence showing his innocence”). Mathis did not announce such a rule; it is a case of statutory interpretation. An independent claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241. See Brown v. Caraway, 719 F.3d 583, 594-96 (7th Cir. 2013); In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998). We note that any § 2241 petition would need to be filed in the district where the petitioner is in custody. See 28 U.S.C. § 2241(a); Fed. R. App. P. 22(a).

Accordingly, we DENY authorization and DISMISS Dawkins’s application.