TENTH CIRCUIT OFFERS GUIDANCE ON APPLICATION OF MATHIS TO JOHNSON CLAIM

United States vs. Lewis, No. 17-7033 

Lewis pled guilty to felon in possession of a firearm under 18 U.S.C. 922(g). At sentencing, the district court found Lewis to be an Armed Career Criminal based on two drug charges and one burglary charge out of Kansas. He was sentenced to 188 months and did not appeal.

Lewis filed a 2255 motion to vacate his ACCA sentence, and argued that his third prior conviction under Kansas statute 21-3715 only qualified as a violent felony under the now-void residual clause in light of Johnson v. United States and Mathis v. United States. The district court denied Lewis’ motion.

Lewis appealed and sought a certificate of appealability from the Tenth Circuit. Lewis argued that the district court erred in denying his Johnson claim and concluding that Mathis is not retroactively applicable to cases on collateral review. 

The Tenth Circuit noted that Lewis would only be granted a COA “if [Lewis] made a substantial showing of the denial of a constitutional right.”

The court looked at the Kansas burglary statute and determined that both sections went beyond the generic burglary definition because they included tents and places other than buildings. The court said that “under the ‘relevant background legal environment’ at the time of sentencing, it ‘would have been permissible for the district court to examine the underlying charging documents and/or jury instructions to determine if [Petitioner] was charged only with burglary of buildings.” (note: in the Tenth Circuit, the modified categorical approach has been deemed appropriate to determine whether defendant was charged with entering a building).

The court observed the charging documents and determined that [Lewis] “unlawfully, feloniously, willfully, knowingly and without authority enter[ed] into and remain[ed] within a building … with the intent to commit a theft therein, contrary to K.S.A. 21-3715, (Burglary), a class D felony.” Thus, based on the charging documents, “there would have been little dispute at the time of … sentencing that” Petitioner’s burglary conviction fell within the scope of the ACCA’s enumerated offenses clause.” As a result, Lewis did not prove that the sentencing court used the residual clause to classify his burglary as a predicate and as such could not prevail under Johnson.

However, the Tenth Circuit looked at their conflicting case law and saw that reasonable jurists could “debate whether the district court erred in declining to retroactively apply Mathis v. United States.”

The court determined that there two parts to the analysis of a Johnson case. First, the court looks at the law at the time of the sentencing in order to determine if a Johnson error occurred. “If a Johnson error is established, we then turn to harmless error analysis.” This is because “Johnson harmless error review goes to the question of remedies and resentencing” 

The court determined that “[t]he relevant background legal environment is […] a ‘snapshot’ of what the controlling law was at the time of sentencing and does not take into account post-sentencing decisions that may have clarified or corrected pre-sentencing decisions.”  Mathis can only be used as part of the Harmless Error analysis. 

Although the court granted COA in order to clarify when to use lawt hat was in place at the time of the sentencing and what to use post-sentencing, the Tenth Circuit still affirmed the district court’s denial of Lewis’ 2255motion on the merits. This is because for purposes of determining whether there was Johnson error, the court cannot use Mathis. Because Mathis cannot be used to determine whether there was Johnson error, Lewis’ claim fails.  The court granted the COA but affirmed the denial of the 2255. No.17-7033

JEREMY’S NOTES:  The most important thing here is that in the Tenth Circuit, the courts engage in a multiple part test regarding Johnson claims. First, the court asks whether there was a Johnson error. For that test, in the Tenth Circuit, only controlling law at the time of the sentence can be used. Second, the court asks whether there is harmless error. Courts in the Tenth Circuit can use Mathis and other post-conviction case law to determine if harmless error exists.  

Please reach out to our office for more info on this and to find out if your loved one is eligible for relief.