More Fun with Second-and-Successive “Second-and-Successives” – Update for July 18, 2016

We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …



A few days ago, we wrote about Gary Baptiste, whom the 11th Circuit said had returned to the well once too often seeking permission to file a second-and-successive 2255 motion. Today, he has a fellow traveler – John Dawkins, who having been convicted of bank robbery, applied to file a second-and-successive 2255 in the 7th Circuit.

John was challenging whether his predicate Illinois burglary conviction was a crime of violence under the Guidelines § 4B1.2(b) “career offender” definition in the wake of Johnson v. United States. The 7th Circuit denied the application last January, holding that the Illinois burglary was a generic burglary of a dwelling, which is enumerated as a crime of violence in the sentencing guidelines.

hesback160718After the Supreme Court’s June decision in Mathis v. United States, Dawkins applied for leave to file a second-and-successive again, this time arguing that the Illinois burglary was no longer a generic burglary, and – of course – was not otherwise violent under Johnson. Last Friday, the 7th Circuit shot him down again.

Dawkins argued that Mathis provides an independent basis for a second-and-successive authorization, reasoning that any intervening change in the law allows a successive application. The Court held that “this proposition clearly is not true; only new rules of constitutional law, made retroactive by the Supreme Court, can provide a basis for authorization… Mathis did not announce such a rule; it is a case of statutory interpretation. An independent claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241.”

Dawkins v. United States, Case No. 16-2683 (7th Cir. July 15, 2016)


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