MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Michael A. Ealey (Ealey) wants me to appoint counsel for him so he can challenge his conviction under the recently decided opinion of the Supreme Court styled, Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015) (the "residual clause" of the Armed Career Criminal Act—"any felony that "involves conduct that presents a serious potential risk of physical injury to another"-violated the Due Process Clause). I will deny his motion.

First, the burglary1 he was convicted of committing and that partially resulted in Ealey being held to be a "career offender" under the Guidelines is an enumerated offense under, but not part of the residual clause of, U.S.S.G. § 4B1.2(a)(2).

Second, the attempted robbery2 that partially resulted in Ealey being a "career offender" has an element involving the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 4B1.2(a)(1). Under Nebraska law, an individual attempts to perpetrate a robbery when he forcibly by violence or by putting in fear attempts to take from another or from his immediate possession or custody any money or personal property of value with intent to rob or steal. See, e.g., Wilson v. State, 204 N.W.2d 258, 266 (1960).

In short, Johnson does not apply in this case assuming for the sake of argument that it is retroactive. Ealey was not sentenced under the "residual clause." Consequently, he is not entitled to the appointment of counsel.

IT IS ORDERED that the Motion for Appointment of Counsel (filing no. 149) is denied.