Charles B. Douglas, Petitioner-Appellant,
United States of America, Respondent-Appellee.
May 16, 2017
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:16-cv-270 -
Jon E. DeGuilio, Judge.
Easterbrook, Sykes, and Hamilton, Circuit Judges.
Easterbrook, Circuit Judge.
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.
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.
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
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.
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
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 ...