United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1908
                        ___________________________

                              Samuel Bryce Silk, Jr.,

                      lllllllllllllllllllllPetitioner - Appellant,

                                          v.

                            United States of America,

                      lllllllllllllllllllllRespondent - Appellee.
                                      ____________

                    Appeal from United States District Court
                   for the District of North Dakota - Bismarck
                                  ____________

                           Submitted: October 18, 2019
                              Filed: April 6, 2020
                                 ____________

Before COLLOTON, WOLLMAN, and KELLY, Circuit Judges.
                       ____________

COLLOTON, Circuit Judge.

      Samuel Silk, Jr., appeals the district court’s judgment denying his motion to
vacate his sentence imposed under 18 U.S.C. § 117 for the crime of domestic assault
by a habitual offender in Indian country. We conclude that Silk’s challenge is
procedurally defaulted, and we therefore affirm the judgment of the district court.1

       Silk was convicted under 18 U.S.C. § 117 after he assaulted his girlfriend on
July 12, 2014. The conviction as a “habitual offender” required proof that he
committed domestic assault in Indian country after sustaining two prior convictions
for offenses enumerated in § 117(a). The qualifying predicate offenses include an
offense that would be, if subject to federal jurisdiction, “any assault, sexual abuse, or
serious violent felony against a spouse or intimate partner.” 18 U.S.C. § 117(a)(1).
The indictment alleged that Silk committed domestic assault on July 12, 2014, after
he had sustained two prior convictions in tribal court: one for domestic violence in
November 2011, and another for domestic violence on July 14, 2014.

       Silk pleaded guilty in February 2015, and the district court sentenced him to
37 months in prison. Silk did not appeal. In March 2016, he moved under 28 U.S.C.
§ 2255 to vacate his sentence on the ground that the second predicate tribal
conviction did not become final until two days after the July 2014 assault against his
girlfriend. Silk argued that he thus did not violate the habitual offender provision of
§ 117, because he had not sustained two qualifying convictions at the time of the
domestic assault.

       The district court determined that Silk had waived in his plea agreement the
right to mount a collateral attack on his conviction under § 117. But a panel of this
court concluded that the waiver was unenforceable, and remanded the case for further
proceedings. Silk v. United States, 712 F. App’x 586 (8th Cir. 2018) (per curiam).
On remand, the district court determined that Silk’s challenge to the conviction under
§ 117 was procedurally defaulted because he did not raise it on direct appeal. The


      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.

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court also concluded that even without considering the disputed tribal court
conviction from 2014, Silk had two qualifying predicate convictions that were final
on the date that he committed domestic assault: the conviction for domestic violence
in tribal court from 2011, and a conviction for simple assault in Bismarck Municipal
Court from 2013 in which his intimate partner was a victim.

        Silk challenges the district court’s conclusion on procedural default. There are
strict limits, however, on when a guilty plea may be attacked on collateral review
under § 2255. Ordinarily, where a defendant does not challenge his guilty plea on
direct appeal, he may not do so in a collateral attack. “Habeas review is an
extraordinary remedy and will not be allowed to do service for an appeal.” Bousley
v. United States, 

, 621 (1998) (internal quotation omitted).

       Silk argues that he may proceed with a collateral attack under an exception to
procedural default for one who is “actually innocent.” In this context, “actual
innocence” means “factual innocence, not mere legal insufficiency.”

Therefore, in evaluating procedural default, the court is not limited to the record
created at Silk’s guilty plea, and may consider any evidence bearing on whether Silk
is “actually innocent” of the charged offense. The government produced evidence
concerning the 2013 conviction in Bismarck in response to Silk’s collateral attack.

       The government contends that Silk’s argument that two of his prior convictions
do not qualify as predicate offenses under § 117 is a claim of “legal, not factual,
innocence,” and that the “actual innocence” exception to procedural default therefore
cannot apply. Anderson v. United States, 

, 707 (8th Cir. 1994); see
United States v. Pettiford, 

, 284 (4th Cir. 2010). We need not resolve
that issue, because the record demonstrates that Silk had sustained two qualifying
convictions before the date of the instant offense, so he cannot show innocence of
either type.



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      Silk concedes that the 2011 conviction for domestic violence counts as a
predicate, and the government acknowledges that the 2014 tribal court conviction
does not qualify because it was not final. The dispute centers on the 2013 conviction
from Bismarck Municipal Court for simple assault.

       Silk contends that the 2013 conviction does not qualify because the Bismarck
ordinance under which he was convicted does not define an offense that is,
categorically, “any assault . . . against a spouse or intimate partner.” 18 U.S.C.
§ 117(a)(1). Silk implies that “assault” in § 117 carries the meaning of that term
under the federal criminal code for offenses committed within the territorial
jurisdiction of the United States. See 18 U.S.C. § 113. He then posits that the
Bismarck assault ordinance includes offenses committed with a mens rea of
negligence, whereas the federal assault statute excludes negligent conduct.
Therefore, Silk says, even if the facts show that he intentionally assaulted an intimate
partner, the Bismarck assault offense does not categorically qualify as “any assault”
within the meaning of § 117. The district court concluded that the categorical
approach did not apply and rejected this argument.

      We need not decide whether § 117 calls for a categorical approach, because
Silk does not prevail if we assume that mode of analysis. The Bismarck Municipal
Code provides that a person is guilty of simple assault if he:

      1. Willfully causes bodily injury to another human being; or

      2. Negligently causes bodily injury to another human being by means
      of a firearm, destructive device, or other weapon, the use of which
      against a human being is likely to cause death or serious bodily injury.

Bismarck Mun. Code § 6-03-01. Silk acknowledges that the two subsections are
framed in the disjunctive, which suggests that the provision is divisible into two


                                          -4-
alternative versions of the crime. We agree that is the better reading of the ordinance.
See Mathis v. United States, 

, 2256-57 (2016).

       With a divisible ordinance, we apply the modified categorical approach to
determine which version of the offense Silk committed. See Descamps v. United
States, 

, 257 (2013). To do so, we may consult the judicial records of
his Bismarck case. See Shepard v. United States, 

, 20-21 (2005). The
parties entered evidence of the charging complaint, a register of actions, and the
judgment in the case. Silk acknowledges that these records may be considered.

       Silk contends that the judicial records do not show whether he was convicted
under subsection (1) or subsection (2) of the ordinance, because the records refer only
to § 6-03-01 and do not identify a subsection. But while it is true that the documents
do not include a statutory citation to § 6-03-01(1) or § 6-03-01(2), they do make clear
that Silk was convicted under subsection (1).

      The complaint alleges that Silk “wilfully and unlawfully caused bodily injury
to another human being to wit: struck his brother, S.S., and V.M. causing injury.”
The judgment and the register of actions show that he entered a plea of guilty to the
charge. The offense charged in the complaint necessarily falls under subsection (1),
because it was committed “wilfully” (not negligently) and by striking another person
to cause injury (not by means of a firearm, destructive device, or other weapon). We
therefore conclude that Silk was convicted of committing simple assault by willfully
causing bodily injury to another person.

       Silk does not dispute that a conviction under subsection (1) qualifies as an
“assault” under 18 U.S.C. § 117, and we agree. The Bismarck ordinance requires
that a defendant cause injury, and therefore complete a battery, and that he act
“willfully,” which means “intentionally, knowingly, or recklessly.” See Bismarck
Mun. Code § 6-01 (incorporating N.D. Cent. Code § 12.1). Assuming for the sake

                                          -5-
of analysis that “assault” under § 117 carries the meaning of “assault” under 18
U.S.C. § 113 (rather than, say, the contemporary, generic meaning of “assault” under
Model Penal Code § 211.1(1)), a violation of subsection (1) of the Bismarck
ordinance matches the federal statute.

       The federal assault statute does not specify the elements of the offense, so we
look to the common law for guidance. See Sekhar v. United States, 

, 732
(2013). At common law, assault included a battery, which could be shown if the
defendant’s conduct was reckless. See United States v. Loera, 

, 728 (9th
Cir. 1991) (citing, inter alia, F. Wharton, Wharton’s Criminal Law § 178 at 296 (C.
Torcia 14th ed. 1979)); United States v. Ashley, 

, 911 & n.4 (8th Cir.
2001). Silk’s “willful” assault causing injury under the Bismarck ordinance thus
would be a battery that qualifies as an “assault” under 18 U.S.C. § 113 if subject to
federal jurisdiction. Once it is established that the defendant committed a qualifying
assault, Silk concedes that the victim’s status as an intimate partner need not be an
element of the predicate offense. Cf. United States v. Hayes, 

, 418
(2009). And it is undisputed that one victim of his Bismarck assault, V.M., was his
intimate partner. Therefore, Silk’s conviction under § 6-03-01(1) of the Bismarck
Code was for an offense that would be, if subject to federal jurisdiction, an assault
against an intimate partner.

      For these reasons, Silk cannot show that he is “actually innocent” of the offense
to which he pleaded guilty, and his challenge to the sentence is procedurally
defaulted. The judgment of the district court is affirmed.
                      ______________________________




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