LINDA R. READE, District Judge.
This matter appears before the court on the movant's second motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1), which he obtained authorization to file. The movant filed such motion on September 29, 2015. In his second § 2255 motion, the movant claims that he is entitled to relief under the recent United States Supreme Court decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). The government disputes that the movant is entitled to relief under 28 U.S.C. § 2255.
On March 12, 2008, the movant pleaded guilty to being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) & 924(e)(1). The court ordered a pre-sentence report to be prepared. The parties entered into a post-plea agreement (criminal docket nos. 46-5 & 53-3). The parties filed sentencing memoranda (criminal docket nos. 46 & 47), which included relevant state court documents concerning the movant's prior convictions. On September 3, 2008, the court calculated a sentencing guidelines range of 188 to 235 months imprisonment based on a total adjusted offense level of 31 and a criminal history category VI and sentenced the movant to a term of 169 months imprisonment, which was the high end of the new range after departing downward from the high end of the applicable sentencing guidelines range. Subsequently, the court relied on Federal Rule of Criminal Procedure 35(b) to reduce the movant's sentence to 109 months imprisonment.
A prisoner in custody under sentence of a federal court is able to move the sentencing court to vacate, set aside or correct a sentence. See 28 U.S.C. § 2255(a). To obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction to impose such sentence"; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) "[that the judgment or sentence] is otherwise subject to collateral attack." Id.; see also Hill v. United States, 368 U.S. 424, 426-27 (1962) (listing four grounds upon which relief under 28 U.S.C. § 2255 may be claimed); Watson, 493 F.3d at 963 (same); Lee v. United States, 501 F.2d 494, 499-500 (8th Cir. 1974) (clarifying that subject matter jurisdiction exists over enumerated grounds within the statute); Rule 1 of the Rules Governing Section 2255 Proceedings (specifying scope of 28 U.S.C. § 2255). If any one of the four grounds is established, the court is required "to vacate and set aside the judgment and [it is required to] discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
When enacting 28 U.S.C. § 2255, Congress "intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Sun Bear, 644 F.3d at 704 (quoting Davis v. United States, 417 U.S. 333, 343 (1974)) (internal quotation mark omitted). Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for "all claimed errors in conviction and sentencing." Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, 28 U.S.C. § 2255 is intended to redress constitutional and jurisdictional errors and, apart from those errors, only "fundamental defect[s] which inherently [result] in a complete miscarriage of justice" and "omission[s] inconsistent with the rudimentary demands of fair procedure." Hill, 368 U.S. at 428; see also Sun Bear, 644 F.3d at 704 (clarifying that the scope of 28 U.S.C. § 2255 is severely limited and quoting Hill, 368 U.S. at 428); United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) ("Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised for the first time on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987))). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982) (making clear that a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for an appeal). Consequently, "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Id. (quoting Addonizio, 442 U.S. at 184).
The parties dispute whether the movant has enough prior qualifying convictions to be subject to an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). The movant argues that his three prior Iowa burglary convictions do not qualify as predicate felonies and, therefore, his sentence exceeds the non-ACCA statutory maximum. The government argues that relief is not available under 28 U.S.C. § 2255 because the movant failed to establish that the court relied on the residual clause and it does not matter that, if sentenced today, the movant would no longer be subject to the enhanced ACCA statutory range of punishment because Descamps and Mathis do not provide an independent constitutional basis for attacking the movant's sentence.
Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if the defendant has three or more previous convictions for a "violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). The ACCA defines a violent felony as any crime punishable by imprisonment for a term exceeding one year that: (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another"; (2) "is burglary, arson, or extortion, involves use of explosives"; or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). These definitions of "violent felony" fall into three respective categories: (1) the elements clause; (2) the enumerated-crimes clause; and (3) and the residual clause.
In Johnson, the Supreme Court addressed the constitutionality of the residual clause; the Supreme Court held that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to the defendant and invites arbitrary enforcement by judges." ___ U.S. at ___, 135 S. Ct. at 2557. Shortly after invalidating the residual clause, the Supreme Court concluded in Welch v. United States that Johnson announced a substantive rule that applied retroactively on collateral review. ___ U.S. ___, ___, 136 S.Ct. 1257, 1265 (2016). Hence, under Johnson and Welch, a prior conviction may not be used as a predicate ACCA offense if it falls under 18 U.S.C. § 924(e)(2)(B)'s invalidated residual clause.
The Supreme Court, however, clarified that the ACCA's other two clauses, namely, the elements clause and the enumerated-crimes clause, remain viable. See Johnson, ___ U.S. at ___, 135 S. Ct. at 2563 ("Today's decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA's] definition of a violent felony."); accord United States v. Sykes, 844 F.3d 712, 716 (8th Cir. 2016). Thus, application of Johnson and Welch negates the use of a felony unless it qualifies as an ACCA predicate without relying on the residual clause. "[E]ven if a defendant's prior conviction was counted under the residual clause, courts can now consider whether that conviction counted under another clause of the ACCA." In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (citing Welch, ___ U.S. at ___, 136 S. Ct. at 1268). The movant must prove that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence. See id. at 1273; see also Stanley v. United States, 827 F.3d 562, 566 (7th Cir. 2016) (stating that a "proponent of collateral review" must "produce evidence demonstrating entitlement to relief"); In re Cooks, No. 16-14444-J, 2016 U.S. App. LEXIS 23767, *8 n.2, (11th Cir. Aug. 9, 2016) (emphasizing that burden is on movant); Holloway v. United States, 960 F.2d 1348, 1355 (8th Cir. 1992) (citing Kress v. United States, 411 F.2d 16, 20-21 (8th Cir. 1969), for the proposition that the burden of proof is on petitioner in § 2255 proceeding); Day v. United States, 428 F.2d 1193, 1196 (8th Cir. 1970) (providing that petitioner bears burden of proof on each ground asserted in § 2255 motion); Taylor v. United States, 229 F.2d 826, 832 (8th Cir. 1956) ("Because the statutory proceeding is a collateral attack upon the judgment of conviction, the burden is on the [movant] to establish a basis for relief under some one or more of the grounds set forth in [§ 2255]."). If the court cannot tell whether, at sentencing, the movant's prior convictions qualified pursuant to the residual clause, which would render his sentence subject to being challenged under Johnson, or whether they qualified pursuant to the elements clause or the enumerated-crimes clause, which would not render his sentence subject to being challenged under Johnson, the court must deny relief under 28 U.S.C. § 2255. See In re Moore, 830 F.3d at 1273; accord In re Hires, 825 F.3d 1297, 1303 (11th Cir. 2016). So, if, at the time of sentencing, the movant's burglary convictions qualified as a violent felonies under the enumerated-crimes clause (even if it also qualified under the residual clause), the resulting sentence is not subject to attack. See In re Hires, 825 F.3d at 1303; accord United States v. Gabrio, No. 01-CR-165, 2017 U.S. Dist. LEXIS 122242, at *9 (D. Minn. Aug. 2, 2017); Traxler v. United States, No. 16-CV-747, 2016 U.S. Dist. LEXIS 117119 (W.D. Mich. Aug. 31, 2016); Ziglar v. United States, No. 16-CV-463, 2016 U.S. Dist. LEXIS 105955 (M.D. Ala. Aug. 11, 2016). It makes no difference whether the movant's burglary convictions would count as a predicate if the court sentenced the movant today. See In re Hires, 825 F.3d at 1303 (explaining that "Johnson does not serve as a portal to assert a Descamps claim"); see also United States v. Taylor, 672 F. App'x 860, 861-64 (10th Cir. 2016) (determining that Johnson did not impact sentence imposed because prior burglary convictions qualified under enumerated-crimes clause and Mathis did not announce a new rule that is retroactively applicable to cases on collateral review).
The movant's sentence is not called into question by Johnson because the court did not need to rely on the residual clause when it determined that the movant qualified as an armed career criminal. Rather, the court could have relied on the enumerated-crimes clause because it includes the specific crime of burglary and the elements clause because it addresses robbery. Indeed, although the court did not expressly state how the convictions qualified as predicate felonies, it is apparent that the court determined that the movant qualified as an armed career criminal because each of his burglary convictions—one in 1986 and two in 1993—qualified as an enumerated offense, that is, a "violent felony," 18 U.S.C. § 924(e)(2)(B)(ii); see also PSR (criminal docket no. 55) at ¶¶ 41, 50, 62 & 68, and his robbery conviction qualified as a "violent felony" under the elements clause, see 18 U.S.C. § 924(e)(2)(B)(i); see also PSR (criminal docket no. 55) at ¶¶ 41 & 56. Regarding each enumerated offense, the undisputed facts in the movant's pre-sentence report indicate that: (1) the movant committed second degree burglary under Iowa law by burglarizing a business; (2) the movant committed third degree burglary under Iowa law by burglarizing a business; and (3) the movant committed second degree burglary under Iowa law by burglarizing a residence. See PSR (criminal docket no. 55) at ¶¶ 50, 62 & 68.
At the time of the movant's sentencing in 2008, legal authority would have supported the court's use of the modified categorical approach to assess whether the movant's Iowa burglary convictions were violent felonies under the ACCA's enumerated-crimes clause.
In sum, three of the offenses at issue here—burglary—are enumerated offenses, and, as such, they are unaffected by Johnson. See, e.g., In re Thomas, 823 F.3d 1345, 1348-49 (11th Cir. 2016) (concluding that collateral review based on Descamps was unavailable and enhancement under the ACCA did not turn on the validity of the residual clause because conviction for breaking and entering qualified as generic burglary under the enumerated offenses clause); Gabrio, 2017 U.S. Dist. LEXIS 122242, at *9 ("Because [movant] had at least three prior violent-felony convictions that would have qualified him for the ACCA enhancement even in the absence of Johnson, he is not "rais[ing] a claim based on a right newly recognized by the Supreme Court and made retroactively applicable on collateral review." (quoting United States v. Sonczalla, No. 07-CR-187, 2016 U.S. Dist. LEXIS 123522, 2016 WL 4771064, at *2 (D. Minn. Sept. 12, 2016)) (second alteration in original)); United States v. Holt, No. 15-CV-11891, 2016 U.S. Dist. LEXIS 48063, at *9 (N.D. Ill. April 11, 2016) (concluding that Illinois burglary conviction constituted an enumerated offense because it aligned with generic burglary as defined by the Supreme Court in Taylor), aff'd, 843 F.3d 720 (7th Cir. 2016). Further, one offense—robbery—falls under the elements clause, and, consequently, it is unaffected by Johnson.
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. § 2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue only if a movant has made a substantial showing of the denial of a constitutional right.See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the issues must be debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds. "`[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy [28 U.S.C.] § 2253(c) is straightf orward: the [movant] must demonstrate that reasonable jurists would find the di strict court's assessment of the constitutional claims debatable or wrong.'" Miller-El, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on procedural grounds without reachi ng the underlying constitutional claim, "the [movant must show], at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." See Slack, 529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the movant failed to make the requisite "substantial showing" with respect to the claim that he raised in his motion pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Because he does not present a question of substance for appellate review, there is no reason to grant a certificate of appealability. Accordingly, a certificate of appealability shall be denied. If he desires further review of his motion pursuant to 28 U.S.C. § 2255, the movant may request issuance of the certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals in accordance with Tiedeman, 122 F.3d at 520-22.
For the reasons discussed above, the movant's sentence is not subject to being challenged under Johnson. Accordingly, the movant's second motion under 28 U.S.C. § 2255 is denied. Additionally, a certificate of appealability will not issue. The movant's motion to hold case in abeyance (civil docket no. 3) is denied as moot.
