JOHN C. NIVISON, Magistrate Judge.
In this action, Petitioner John Wayne Myers moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 54.) In 2001, following a jury trial, Petitioner was convicted of being a felon in possession of firearms and ammunition; the Court sentenced Petitioner to a term of 235 months in prison. Petitioner contends he is entitled to be resentenced because, pursuant to Johnson v. United States, — ___ U.S. ___, 135 S.Ct. 2551 (2015), his prior Wisconsin burglary convictions no longer qualify as violent felonies for purposes of a sentencing enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
The First Circuit granted Petitioner's request to file a successive section 2255 motion to address "solely the issue of whether Petitioner's Wisconsin burglaries qualified as predicates under § 924(e)(2)(B)." (Myers v. United States, Nos. 16-1864, 16-2135 (1st Cir. Jan. 12, 2017).) The First Circuit "express[ed] no opinion about the ultimate merits of the issue." Id. The Government has requested summary dismissal. (Response, ECF No. 77.)
Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.
Petitioner was convicted of being a felon in possession of firearms and ammunition, 18 U.S.C. § 922; the Court sentenced him to a prison term of 235 months, to be followed by a term of five years of supervised release. United States v. Myers, 294 F.3d 203, 204, 206 (1st Cir. 2002). (Jury Verdict, ECF No. 22; Sentencing Tr., ECF No. 32 at 317; Judgment, ECF No. 29.)
At sentencing, the Government introduced without objection the criminal complaints and judgments for two Wisconsin burglary convictions, one in 1968 and the other in 1972. (Sentencing Tr. at 304-07; Attachments to Response, ECF Nos 77-1, 77-2.) The criminal complaints in both cases, and the judgment in the 1968 case, establish that the 1968 conviction and one count of the 1972 conviction involved the entry of a building without consent and with felonious intent. (Attachments, ECF Nos. 77-1 at 3, 9, 77-2 at 2.) The Court asked counsel whether the facts regarding the Wisconsin burglaries, among other prior convictions, were accurate. (Sentencing Tr. at 307.) Counsel conceded that the Government had established the prior convictions by a preponderance of the evidence. (Id.)
The remaining background relevant to Petitioner's motion is set forth in the First Circuit's judgment granting permission to file a successive section 2255 motion:
(Myers, Nos. 16-1864, 16-2135 (1st Cir. Jan. 12, 2017).)
Petitioner's sentence was enhanced, pursuant to 18 U.S.C. § 924(a)(2), (e)(1), because the Court found he had at least three prior convictions that qualified as "violent felonies" under section 924(e)(2)(B).
In Johnson, the Supreme Court held that the so-called "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. 135 S. Ct. at 2557. In Welch v. United States, ___ U.S. ___, ___, 136 S.Ct. 1257, 1268 (2016), the Supreme Court determined that "Johnson announced a substantive rule that has retroactive effect in cases on collateral review." However, in Johnson, the Court explicitly left intact the enumerated offenses provision of section 924(e)(2)(B)(ii): "Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony." Id. at 2563. Burglary is one of the offenses enumerated in section 924e)(2)(B)(ii). Therefore, to the extent Petitioner's prior Wisconsin burglary convictions remain valid under the enumerated crimes provision of section 924(e)(2)(B)(ii), Petitioner is not entitled to relief under Johnson.
The central issue is whether Petitioner is entitled to relief based on the Supreme Court's recent decision in Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016).
Although the First Circuit apparently has not decided whether a Wisconsin burglary of a "building or dwelling" is a generic burglary, the Eighth Circuit did so in United States v. Lamb, 847 F.3d 928 (8th Cir. 2017), which provides persuasive authority. See Powell v. Alexander, 391 F.3d 1, 24 (1st Cir. 2004) (noting that a party's reliance on nonbinding but persuasive authority from another circuit on an issue of first impression in this circuit, provided a "plausible" argument). In Lamb, which was on remand for reconsideration following Mathis, the Eighth Circuit held that a Wisconsin burglary of a "building or dwelling" constituted a "violent felony" under the enumerated crimes clause, 18 U.S.C. §924(e)(2)(B)(ii), for purposes of an enhanced sentence. 847 F.3d at 930, 933-34.
Specifically, the Court concluded that section 943.10(1m) of the Wisconsin burglary statute is divisible because subsections (a) through (f) "list the locational elements of divisible burglary offenses."
As to subsection 943.10(1m)(a), which addresses burglary of "[a]ny building or dwelling," the Eighth Circuit concluded that it would "defer to the Seventh Circuit's greater familiarity with Wisconsin law and assume without deciding that § 943.10(1m)(a) is indivisible under Mathis." Id. at 933 (citing United States v. Edwards, 836 F.3d 831, 838 (7th Cir. 2016)).
The Eighth Circuit concluded that because subsection 943.10(1m)(a) is indivisible, the Court "must apply the categorical approach to determine whether burglary of a `building or dwelling' is generic burglary as defined in [Taylor v. United States, 495 U.S. 575 (1990)] — `unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.'" Lamb, 847 F.3d at 933 (quoting Taylor, 495 U.S. at 599). The Court determined that section 943.10(1m)(a) was not overinclusive, i.e., it was not broader than generic burglary:
Lamb, 847 F.3d at 933-34.
Consistent with the Eighth Circuit's reasoning, Wisconsin law appears to lack any suggestion that at the time of Petitioner's crimes or later, the term "dwelling" was meant to include locations beyond those included in generic burglary. "The Supreme Court has explained that `to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language." United States v. Quarles, 850 F.3d 836, 839 (6th Cir. 2017) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). "In order to succeed, the defendant must show `a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.'" Id. (quoting Gonzales, 549 U.S. at 193).
Petitioner has not demonstrated a realistic probability that Wisconsin would apply its statute to conduct outside the generic definition of burglary. The Wisconsin constitution provides that the Court may look to the common law in Wisconsin. Art. 14, § 13 ("Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.") However, the Wisconsin Supreme Court evidently has not defined the term "dwelling" under state common law for purposes of a burglary conviction. See State v. Handeland, 221 Wis.2d 597 (Wis. Ct. App. 1998) (unpublished) (discussing the common law definition of "dwelling," not by reference to Wisconsin common law, but rather by reference to United States v. Dunn, 480 U.S. 294, 300 (1987), which discusses the common law concept of curtilage as it relates to the Fourth Amendment). Under Gonzalez, 549 U.S. at 193, therefore, the term "dwelling," as applied to Petitioner's prior Wisconsin burglary convictions, cannot be interpreted to be broader than generic burglary.
In sum, the Wisconsin burglaries conform to generic burglary and qualify as ACCA predicate violent felonies under 18 U.S.C. § 924(e)(2)(B)(ii). Petitioner, therefore, is not entitled to relief.
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. In addition, I recommend that the Court deny Petitioner's motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
Section 924(e)(1) provides in relevant part:
Section 924(e)(2)(B) provides in relevant part:
Section 2244 requires that a successive claim be dismissed unless, among other grounds not applicable here, the claim "relies on 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. §§ 2244(b)(2), 2255(h).
Johnson v United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), is a new rule of constitutional law that the Supreme Court made retroactively applicable to cases on collateral review. Welch v. United States, ___ U.S. ___, ___, 136 S.Ct. 1257, 1268 (2016). However, Johnson does not entitle Petitioner to relief to the extent the prior Wisconsin burglary convictions qualify as predicate violent felonies under the enumerated crimes clause, rather than the residual clause, of 28 U.S.C. § 924(e)(2)(B)(ii).
Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016), however, did not establish a new rule of constitutional law, and the Supreme Court did not declare the holding to be retroactively applicable. 136 S. Ct. at 2251-52 (noting that the Court's prior precedent, including Descamps v. United States, ___ U.S. ___, — ___, 133 S.Ct. 2276, 2283 (2013), indicated the rule was not new); Holt v. United States, 843 F.3d 720, 722 (7th Cir. 2016) (noting that "Mathis has not been declared retroactive by the Supreme Court — nor is it a new rule of constitutional law"); Dimott v. United States, Nos. 2:06-cr-26-GZS, 2:16-cv-347-GZS, 2016 WL 6068114, at *3, 2016 U.S. Dist. Lexis 142354, at *6-7 (D. Me. Oct. 14, 2016), appeal docketed, No. 16-2289 (1st Cir. Oct. 25, 2016). A question, therefore, exists as to whether the Supreme Court's decision in Johnson permits the Court to assess Petitioner's Wisconsin burglaries under Mathis. For instance, in Holt, the Seventh Circuit held that a challenge to a prior burglary conviction was necessarily based on statutory interpretation, rather than the constitution, and, under the standards that apply to second or successive section 2255 motions, the claim was not a Johnson claim. Holt, 843 F.3d at 723-24. In other words, under the reasoning of Holt, Johnson does not open the door to a second or successive section 2255 challenge to a prior conviction under the enumerated crimes clause. Id.; but see In re Adams, 825 F.3d 1283 (11th Cir. 2016) ("[W]e conclude that Mr. Adams has made the requisite prima facie showing [to file a second or successive section 2255 motion] because his prior Florida conviction for burglary of an unoccupied dwelling may not qualify as a valid predicate offense after Johnson."). Although the First Circuit has not yet directly ruled on the issue whether Johnson permits a reexamination of a prior conviction under the enumerated crimes clause, because in its judgment authorizing Petitioner's second or successive claim based on whether Petitioner's burglary convictions qualify as predicates under 18 U.S.C. § 924(e)(2)(B), the First Circuit wrote, "it is unclear under current precedent whether Petitioner's Wisconsin burglary convictions qualified as violent felonies," I have evaluated the burglary convictions under Mathis. (Myers, Nos. 16-1864, 16-2135 (1st Cir. Jan. 12, 2017) (emphasis added).)
At the time of Petitioner's 1971 burglary, the statute contained fewer and differently-numbered subsections; however, the relevant subsection, which now is codified at section 943.10(1m)(a), is worded the same now as it was then as to the locational element of burglary relevant here, i.e., it provided: "Any building or dwelling." Furthermore, then as now, the statute contained an additional subsection that provided: "A room within any of the above."
