United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, United States District Judge.
reasons explained in this Entry, the amended motion of Steven
Dotson (“Mr. Dotson”) for relief pursuant to 28
U.S.C. § 2255 must be denied and the
action dismissed with prejudice. In addition, the Court finds
that a certificate of appealability should not issue.
The § 2255 Motion
Dotson was convicted of being a felon in possession of a
firearm under 18 U.S.C. § 922(g)(1), on January 10,
2012, after a bench trial in the United States District Court
for the Southern District of Indiana. United States v.
Dotson, 1:11-cr-056-WTL-DML-1, Crim. Case, Dkt. No. 43.
He was sentenced to a term of 188 months to be followed by a
5 year term of supervised release. The 188 month sentence was
based on the Court's finding that Mr. Dotson was an armed
career criminal under 18 U.S.C. § 924(e) (Armed Career
Criminal Act) (“ACCA”). Judgment was entered
August 20, 2012. Crim Case, Dkt. No. 56. The Seventh Circuit
Court of Appeals affirmed the conviction on April 4, 2013.
United States v. Dotson, 712 F.3d 369 (7th Cir.
2013). Mr. Dotson's petition for writ of certiorari was
denied by the United States Supreme Court on October 7, 2013.
Dotson v. United States, 134 S.Ct. 238 (2013).
Court found Mr. Dotson to be an armed career criminal after
finding that he had three or more prior convictions that
qualified as “violent felonies.” Those Indiana
convictions included burglary, armed robbery, dealing in
cocaine, and attempted robbery. In his amended motion to
vacate under § 2255, Mr. Dotson claims that two of his
predicate offenses, burglary and attempted robbery, are not
violent felonies under the ACCA. Dkt. No. 39; Dkt. No. 45.
The United States opposes his amended § 2255 motion.
noted, throughout this litigation, Mr. Dotson has not
challenged two of his four predicate offenses: armed robbery
and dealing in cocaine. In Mr. Dotson's reply, Dkt. No.
54, for the first time since this action was filed in 2014,
he argues that his dealing in cocaine conviction is not a
serious drug felony conviction. Even if this argument had not
been waived by being raised only in the reply, the Court need
not consider it on the merits because Mr. Dotson has three
other predicate violent felonies: burglary, armed robbery,
and attempted robbery.
ACCA “imposes a 15-year minimum sentence on defendants
convicted of illegally possessing a firearm, …who also
have at least three prior convictions for a ‘violent
felony' or a ‘serious drug offense.'”
United States v. Foster, 877 F.3d 343, 344 (7th Cir.
2017). “ACCA defines ‘violent felony' in
relevant part as any felony that ‘is burglary.' 18
U.S.C. § 924(e)(2)(B)(ii).” Id.
“The term ‘burglary' in §
924(e)(2)(B)(ii), however, refers only to crimes that fit
within ‘generic' burglary, which the Supreme Court
has defined as ‘an unlawful or unprivileged entry into,
or remaining in, a building or other structure, with intent
to commit a crime.'” Id. (quoting
Taylor v. United States, 495 U.S. 575, 598 (1990)).
“Determining whether burglary under a given state's
law is a violent felony presents a categorical question that
focuses exclusively on the state crime's elements and not
on the facts underlying the conviction.” Id.
(citing Mathis v. United States, 136 S.Ct. 2243,
2248 (2016)). “The state crime's elements must be
the same as, or narrower than, the elements of generic
burglary, so that the crime covers no more conduct than the
generic offense.” Id.
Seventh Circuit has determined that an Indiana Class C
burglary conviction is a valid predicate offense under §
924(e)(2)(B)(ii). United States v. Perry, 862 F.3d
620, 624 (7th Cir. 2017); Foster, 877 F.3d at 344
(“We recently held in United States v. Perry,
862 F.3d 620, 624 (7th Cir. 2017), that Indiana Class C
burglary is a violent felony because it is at least as narrow
as generic burglary.”). Mr. Dotson's burglary
conviction in 1993, No. 49G06-9301-CF-007715, was a C felony.
Perry controls the outcome here.
addition, with regard to the conviction of attempted robbery,
the Seventh Circuit has declared that the “law of the
circuit” is “[w]hen a substantive offense would
be a violent felony under § 924(e) and similar statutes,
an attempt to commit that offense also is a violent
felony.” Hill v. United States, 877 F.3d 717,
719 (7th Cir. 2017). This holding was foreshadowed in 2016 in
United States v. Armour, 840 F.3d 904, 909, n. 3
(7th Cir. 2016) (noting that “[a]n attempt conviction
requires proof of intent to carry out all elements of the
crime, including, for violent offenses, threats or use of
violence.”), and in Judge Hamilton's concurring
opinion in Morris v. United States, 827 F.3d 696,
699 (7th Cir. 2016) (concluding that “an attempt to
commit a crime should be treated as an attempt to carry out
acts that satisfy each element of the completed
crime.”). Mr. Dotson's prior felony of
attempted robbery qualifies as a valid predicate offense.
Dotson is not entitled to relief pursuant to 28 U.S.C. §
2255. The amended motion for relief pursuant to § 2255
is therefore DENIED. Judgment consistent
with this Entry shall now issue.
Entry shall also be entered on the docket in the underlying