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Forrest v. United States

United States Court of Appeals, Eighth Circuit

August 15, 2019

John Forrest, also known as John Forrest Rothermel, Petitioner - Appellant,
v.
United States of America, Respondent - Appellee.

          Submitted: February 15, 2019

          Appeal from United States District Court for the District of Nebraska - Lincoln

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          COLLOTON, CIRCUIT JUDGE.

         John Forrest appeals an order of the district court[1] denying his successive motion to correct his sentence under 28 U.S.C. § 2255. We conclude that Forrest does not meet the requirements of § 2255(h)(2) for filing a successive motion, and we therefore affirm the denial of relief.

         Forrest was convicted in 2009 on one count of unlawful possession of a firearm as a felon. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act, he was subject to a mandatory minimum sentence of fifteen years' imprisonment if he had sustained three prior convictions for a "violent felony." Id. § 924(e)(1). "Violent felony" means "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." Id. § 924(e)(2)(B). We refer to these clauses as the force clause, the enumerated offenses clause, and the residual clause, respectively.

         At sentencing, the district court determined that Forrest had sustained four prior convictions for violent felonies: Colorado convictions for menacing, robbery, and second-degree burglary, and a Kansas conviction for attempted burglary. The court imposed the statutory minimum term of 180 months' imprisonment.

         On appeal, this court affirmed. United States v. Forrest, 611 F.3d 908 (8th Cir. 2010). We held that Forrest's menacing and robbery convictions qualified as violent felonies under the force clause, that his Colorado second-degree burglary conviction counted under the enumerated offenses clause, and that his Kansas attempted burglary conviction met the standard under the residual clause. Id. at 911-13. The district court denied Forrest's first motion to vacate his sentence in 2011.

         The Supreme Court then held in Johnson v. United States, 135 S.Ct. 2551, 2557 (2015), that the residual clause is unconstitutionally vague and eventually applied Johnson retroactively to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1265 (2016). In light of Johnson and Welch, this court granted Forrest leave under § 2255(h) to file a successive motion to correct his sentence.

         In the district court, Forrest argued that his Kansas attempted burglary conviction no longer counted as a violent felony after Johnson. He maintained that because Johnson changed the status of the attempted burglary conviction, he should be afforded a new sentencing hearing at which he could rely on Mathis v. United States, 136 S.Ct. 2243 (2016), and Descamps v. United States, 570 U.S. 254 (2013), to show that his Colorado conviction for second-degree burglary also is not a violent felony under current law. If those arguments were to succeed, then Forrest would have only two remaining convictions for a violent felony, and he would not be an armed career criminal subject to enhanced punishment.

         The district court denied the motion, concluding that Johnson left three of Forrest's prior convictions unaffected, and that Mathis and Descamps do not apply retroactively. Forrest appeals, and we review the district court's legal conclusions de novo.

         An order granting leave to file a successive motion under § 2255 is a preliminary determination subject to fuller consideration after the motion is filed. See Kamil Johnson v. United States, 720 F.3d 720, 720-21 (8th Cir. 2013) (per curiam). To proceed with a successive motion under § 2255(h)(2), a movant must establish that his motion "contain[s] . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2); see Kamil Johnson, 720 F.3d at 720-21. A motion "contains" a new rule if it "relies on" the new rule. Donnell v. United States, 826 F.3d 1014, 1016 (8th Cir. 2016). And a claim truly "relies on" a new rule only when the rule is "sufficient to justify a grant of relief." Id. at 1017.

         The only new rule on which Forrest relies is the unconstitutionality of the residual clause established in Johnson. Neither Mathis nor Descamps announced a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review. Martin v. United States, 904 F.3d 594, 597 (8th Cir. 2018). Forrest contends, however, that once Johnson eliminates his Kansas attempted burglary conviction as a violent felony, he is entitled to a "recount" of his other convictions under current law.

         Forrest also suggests that because Johnson provides "an avenue of relief that was not previously available, "-that is, a means to avoid counting any of the convictions under the residual clause-Forrest for the first time has reason to dispute that his convictions count under the force clause or the enumerated offenses clause. See Stoner v. United States, No. 1:16-CV-156 CAS, 2017 WL 2535671, at *3-4 (E.D. Mo. June 12, 2017). Because his motion "uses" Johnson to eliminate counting convictions under the residual clause, he intimates that the motion "relies on" a new rule of constitutional law and satisfies the requirements for a successive motion under § 2255(h)(2). Id. at *4. Forrest asserts that ...


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