Fletcher v. United States, No. 16-1220 (8th Cir. 2017)
Annotate this CasePetitioner appealed the denial of his 28 U.S.C. 2255 motion to vacate, set aside, or correct his criminal sentence. Petitioner was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), based on predicate offenses for possession with intent to distribute crack cocaine and two Nebraska felony convictions for making terroristic threats (one as a juvenile and one as an adult). The Eighth Circuit affirmed and held that the Nebraska statute qualifies under the ACCA force clause; an act of juvenile delinquency cannot qualify as a violent felony under any clause of the ACCA, including the residual clause, unless the court first determines that it involved the use or carrying of a firearm, knife, or destructive device; that question is completely separate from the question of whether the juvenile conviction is an enumerated offense or qualifies under the force clause; the court sua sponte determined that petitioner's claim that his juvenile offense did not involve the use or carrying of a firearm, knife, or destructive device is procedurally defaulted; and even if the theoretical possibility exists that the Nebraska statute could encompass threats only to property, petitioner has not demonstrated a realistic probability that Nebraska would apply the statute in that manner.
Court Description: Gruender, Author, with Colloton and Beam, Circuit Judges] Habeas Case - Armed Career Criminal Act. Felony convictions for making terroristic threats (one as a juvenile and one as an adult) under the Nebraska terroristic threats statute qualify as violent felonies under the force clause of the Armed Career Criminal Act. An act of juvenile delinquency cannot qualify as a violent felony unless the court first determines that it involved the use or carrying of a firearm, knife, or destructive device. That determination is separate from the question whether the juvenile conviction is an enumerated offense or qualifies under the force clause, and here, that determination, reviewed sua sponte, is procedurally defaulted. Applying the categorical approach, the Nebraska statute can encompass threats against property, but no cases have applied the terroristic threats statute to a threat to property alone and there is no realistic probability that the State will apply its statute to conduct that falls outside the generic definition.
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