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Douglas v. United States

United States Court of Appeals, Seventh Circuit

June 5, 2017

Charles B. Douglas, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued May 16, 2017

          Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:16-cv-270 - Jon E. DeGuilio, Judge.

          Before Easterbrook, Sykes, and Hamilton, Circuit Judges.

          Easterbrook, Circuit Judge.

         Charles Douglas pleaded guilty to possessing a firearm, which his earlier felony convictions made it illegal for him to have. 18 U.S.C. §922(g)(1). He was sentenced to 110 months after the district judge found that at least 3 of Douglas's 16 other felony convictions were "violent felonies" as defined by the Armed Career Criminal Act, 18 U.S.C. §924(e). After the Supreme Court held the residual clause of §924(e)(2)(B)(ii) unconstitutionally vague, Samuel Johnson v. United States, 135 S.Ct. 2551 (2015), Douglas filed a motion under 28 U.S.C. §2255, asking the district court to reduce his sentence. But the judge concluded that Douglas is properly classified as an armed career criminal.

         The invocation of §2255 is problematic. Douglas treats Samuel Johnson as opening to collateral review all sentences under the Armed Career Criminal Act. Yet the Court did not hold the Act invalid; Samuel Johnson concerns only a part of §924(e)(2)(B)(ii). The elements clause in §924(e)(2)(B)(i) remains in effect, as does the burglary clause in §924(e)(2)(B)(ii). See, e.g., Stanley v. United States, 827 F.3d 562 (7th Cir. 2016); Holt v. United States, 843 F.3d 720 (7th Cir. 2016). The district court concluded that Douglas's prior convictions are violent felonies under the elements clause of §924(e)(2)(B)(i), so Samuel Johnson does not affect his situation.

         Douglas does not contend that classifying his convictions as violent felonies violates the Constitution but instead that the district court misapplied the elements clause, as interpreted in Curtis Johnson v. United States, 559 U.S. 133 (2010). Curtis Johnson, a statutory decision, was issued about five years before Douglas filed his §2255 motion, which was accordingly untimely even if Curtis Johnson applies retroactively on collateral review. See 28 U.S.C. §2255(f)(3). What's more, as part of his plea agreement Douglas agreed to waive the right to seek collateral review.

         Yet the United States has chosen not to contest the use of §2255 to obtain collateral review of a contention that rests on Curtis Johnson, not to invoke the one-year time limit in §2255(f), and to waive its rights under the plea agreement. The Supreme Court has held that federal courts may dismiss procedurally defective collateral attacks when the government fails to notice the problems, see Granberry v. Greer, 481 U.S. 129 (1987), but must respect formal waivers by prosecutors and wardens. See Wood v. Milyard, 566 U.S. 463 (2012). None of the procedural problems we have mentioned affects subject-matter jurisdiction, so we give effect to the United States' waiver and turn to the merits.

         The parties agree that the sole issue on the merits is whether Class C felony battery in Indiana at the time of Douglas's two convictions for that offense was a violent felony under the elements clause of §924(e)(2)(B)(i). The state statute has since been amended, but we must consider its elements as they were when Douglas committed those offenses. The state law provided:

A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:
(1) a Class A misdemeanor if:
(A) it results in bodily injury to any other person; ...
(3) a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon[.]

Ind. Code §35-42-2-1 (a) (2005). The elements clause of §924(e)(2)(B)(i) designates an offense as a violent felony if it "has as an element the use, attempted use, or threatened use of physical force against the person of another". Accordingly we look at the elements of the state offense, not at what Douglas did in fact. See, e.g., Mathis v. United States,136 S.Ct. 2243 (2016) (discussing the ...


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