Does Innocence Matter? – Update for December 14, 2016

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About 10 years ago, Jakeffe Holt was convicted of being a felon-in-possession of a firearm under 18 U.S.C. 922(g)(1). That crime carries a maximum sentence of 10 years, unless the defendant is deemed an armed career criminal under 18 U.S.C. 924(e), which applies to people with three prior violent felonies or serious drug offenses. Then, the punishment is 15 years to life.

sandbag161214Jakeffe got a 200-month sentence. But after Johnson v. United States held in 2015 that the residual clause in Sec. 924(e)(2)(B)(ii) was unconstitutionally vague. Jakeffe filed a collateral attack on his sentence under 28 U.S.C. 2255. The district court had counted a burglary conviction among the three predicate acts. Jakeffe argued that this was a mistake, but the district court disagreed, and upheld his sentence.

While Jakeffe’s appeal was pending, the 7th Circuit ruled that the version of the Illinois burglary statute under which he had been convicted was not a “violent felony” because it does not satisfy the
definition of “burglary” used in Mathis v. United States. All of a sudden, Jakeffe was clearly not an armed career criminal, and he had served more time that the maximum to which he could have been sentenced.

Easy, right? Just send that man home. But, no, the procedure is anything but easy. The 7th Circuit ruled yesterday that because Jakeffe had already filed his one 2255 motion, he’s out of luck. Under the law, a second 2255 is allowed only if the court of appeals certifies that it rests on newly discovered evidence (which Jakeffe’s did not) or “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).

innocence161214While Johnson was a new rule of constitutional law made retroactive, Jakeffe’s new argument rests on Mathis, which is not. Instead, Mathis just interprets the statutory word “burglary” and “does not depend on or announce any novel principle of constitutional law.” By knocking out the residual clause, Johnson opened the door to arguments based on the limits of the elements clause, the Court said, but it did not declare it unconstitutional.

The problem, the Court said, was that Jakeffe was treating the ACCA as having only two clauses – elements and residual – when it really had three. That third includes as violent crimes “burglary, arson, or extortion [or] involves use of explosives…”

Zakeffe’s burglary conviction was classified as a violent felony under the burglary clause. Nothing in Johnson affects the proper treatment of burglary convictions. So Zakeffe’s second collateral attack cannot rest on Johnson.

If the court of appeals denies a request to file a second or successive application, no one may seek reconsideration or file for certiorari in the Supreme Court. Thus, the Circuit said, it “cannot treat the prosecutor’s supplemental brief as implying a request that we rehear, and rescind, the certificate authorizing a second collateral attack.”

burglary160502Here, the district court found that Jakeffe’s 2255 relied on the meaning of “burglary” rather than the meaning of the Constitution, and she denied the 2255. The judge acted before the Supreme Court released Mathis, so she did not appreciate that Jakeffe’s burglary conviction had been misclassified when he was sentenced. She did, however, understand that his argument was statutory rather than resting on Johnson or any other retroactive rule of constitutional law.

So Jakeffe, who is undoubtedly innocent of an ACCA enhanced sentence, must do an extra 80 months regardless, because procedure demands it. The 7th did note that whether Jakeffe “might be entitled to relief under 28 U.S.C. 2241, should he pursue that route in the district where he is confined… is a question we need not consider.”

Holt v. United States, Case No. 16-1793 (7th Cir., Dec. 13, 2016)


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