John Forrest, also known as John Forrest Rothermel, Petitioner - Appellant,
United States of America, Respondent - Appellee.
Submitted: February 15, 2019
from United States District Court for the District of
Nebraska - Lincoln
LOKEN, COLLOTON, and KELLY, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Forrest appeals an order of the district court 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.
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.
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'
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.
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.
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.
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.
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.
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
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