934 F.3d 775
8th Cir.2019Background
- Forrest was convicted in 2009 of being a felon in possession of a firearm and sentenced as an Armed Career Criminal (ACCA) to the 15-year mandatory minimum based on four prior convictions the court deemed "violent felonies."
- On direct appeal this court upheld that three convictions qualified under the force clause and enumerated-offenses clause, and a fourth (Kansas attempted burglary) under the residual clause. United States v. Forrest, 611 F.3d 908 (8th Cir. 2010).
- Johnson v. United States held the ACCA residual clause unconstitutionally vague; Welch made Johnson retroactive on collateral review. Forrest obtained leave to file a successive §2255 motion under §2255(h).
- Forrest argued Johnson eliminated his Kansas attempted-burglary predicate, and sought to use Mathis and Descamps to show the Colorado burglary also fails as a predicate, which would leave fewer than three predicates.
- The district court denied the successive motion, concluding Johnson did not by itself justify relief because three other predicates remained valid, and Mathis/Descamps are not retroactive. The panel affirmed.
Issues
| Issue | Forrest's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Forrest met §2255(h)(2) to file a successive motion by relying on Johnson | Johnson’s invalidation of the residual clause removes one predicate and thus furnishes a new, retroactive rule that justifies a successive motion | Johnson does not entitle Forrest to relief because three other prior convictions still qualify under the force/enumerated clauses; therefore §2255(h)(2) is not met | Court: No. Forrest’s motion does not “rely on” Johnson in the sense required because Johnson alone is not sufficient to justify relief |
| Whether Forrest may, after invoking Johnson, rely on non-retroactive decisions (Mathis/Descamps) to invalidate other predicates | Once Johnson permits a successive motion, Forrest should be allowed to press Mathis/Descamps to show other convictions no longer qualify | Mathis and Descamps are not retroactive; they cannot be used as the basis for a successive §2255 if Johnson by itself does not justify relief | Court: No. Permitting that would effectively make nonretroactive rules retroactive and produce disparate treatment |
| Standard for determining whether Johnson led the sentencing court to apply the ACCA enhancement (concurring view) | N/A for majority; concurrence applies circuit precedent requiring movant to prove by preponderance that the residual clause led to the enhancement | Under Golinveaux/Walker, movant must show the sentencing record or the legal environment indicates the residual clause was the basis; if record is inconclusive, movant fails | Concurring judge: Although he would allow the successive filing because Forrest presents a Johnson claim, the record is inconclusive and precedent requires denial; he concurs in judgment but disagrees with Walker’s methodology |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause unconstitutional)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson is retroactive on collateral review)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarified limits on modified categorical approach)
- Descamps v. United States, 570 U.S. 254 (2013) (restricted use of the modified categorical approach)
- Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016) (explained when a successive §2255 motion “contains” a new rule)
- Walker v. United States, 900 F.3d 1012 (8th Cir. 2018) (requires movant to show residual clause led to ACCA enhancement)
- United States v. Forrest, 611 F.3d 908 (8th Cir. 2010) (direct appeal upholding predicates)
- Golinveaux v. United States, 915 F.3d 564 (8th Cir. 2019) (applies Walker burden-of-proof framework)