United States Court of Appeals

For the Eighth Circuit

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No. 17-2367

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Adam Joseph Winarske

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the District of North Dakota - Bismarck

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 Submitted: October 18, 2018

Filed: January 14, 2019

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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges. 

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LOKEN, Circuit Judge.

AdamJoseph Winarske appeals the district court’s denial of his second motion 1

to vacate his mandatory minimum fifteen-year sentence under the Armed Career

The Honorable Daniel L. Hovland, Chief Judge, United States District Court

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for the District of North Dakota.
Criminal Act (“ACCA”), arguing that his prior North Dakota burglary convictions are

not “violent felonies” as defined in the ACCA. See 18 U.S.C. § 924(e). Reviewing

the denial of a successive motion for relief under 28 U.S.C. § 2255 de novo, we

affirm.

The ACCA defines “violent felony” to include a felony that “is burglary, arson,

or extortion [the “enumerated-offenses clause”] or otherwise involves conduct that

presents a serious potential risk of physical injury to another [the “residual clause”]. 

18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The Supreme Court has construed the

word “burglary” in its generic sense, that is, as meaning “any crime, regardless of its

exact definition or label, having the basic elements of unlawful or unprivileged entry

into, or remaining in, a building or structure, with intent to commit a crime.” Taylor

v. United States, 495 U.S. 575, 599 (1990). Under the applicable North Dakota

statute, a person is guilty of felony burglary (Class B or class C) if he -

willfully enters or surreptitiously remains in a building or occupied

structure, or a separately secured or occupied portion thereof, when at

the time the premises are not open to the public and the actor is not

licensed, invited, or otherwise privileged to enter or remain as the case

may be, with intent to commit a crime therein.

N.D. Cent. Code § 12.1-22-02(1). “Occupied structure” is defined to mean “a

structure or vehicle [w]here any person lives or carries on business or other calling;

or [w]hich is used for overnight accommodation of persons . . . regardless of whether

a person is actually present.” § 12.1-22-06(4). 

In March 2012, Winarske pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report

noted that Winarske had more than seven prior felony convictions, including five

burglary convictions, and stated that he “is an armed career criminal.” At sentencing,

Winarske did not object to this determination. The district court, noting his “multiple

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burglary convictions,” found that Winarske had at least three prior “violent felony”

convictions and imposed the ACCA’s mandatory minimum sentence of fifteen years

in prison. We affirmed the conviction. United States v. Winarske, 715 F.3d 1063

(8th Cir. 2013), cert. denied, 472 U.S. 1003 (2014).

In February 2015, Winarske filed a motion to vacate his sentence under 28

U.S.C. § 2255, arguing that he wasimproperly sentenced as an armed career criminal

because the Supreme Court’s recent decision in Descamps v. United States, 570 U.S.

254 (2013), established that North Dakota’s burglary statute criminalizes more than

generic burglary. The district court denied the motion, concluding (I) “the elements

of Winarske’s three class C felony convictions for burglary are the same as those of

the generic definition of burglary,” and (ii) Descamps did not alter this analysis

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because the elements of class C burglary “are listed as an undivided set of elements.” 

United States v. Winarske, No. 1:11-cr-86-1, Order Denying . . . Habeas Relief at 6-7

(D.N.D. July 14, 2015). Winarske did not appeal this ruling. 

In June 2016, we granted Winarske’s application for authorization to file a

second or successive § 2255 motion to assert a claim that he was improperly

sentenced as an armed career criminal. Congress has severely limited successive

§ 2255 motions for post-conviction relief. We may not authorize such a motion

unless it is based on “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.” 

§ 2255(h)(2). Here, Winarske’s application properly relied on Johnson v. United

States, 135 S. Ct. 2551 (2015), a decision the Supreme Court made retroactive to

cases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). But

simply citing a new rule is not enough. “The new rule must have a nexus to the right

When Winarske was sentenced, many cases had held that burglary was a

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violent felony under the ACCA’s enumerated-offenses clause. See, e.g., United

States v. Webster, 636 F.3d 916, 920 (8th Cir. 2011) (Maryland burglary); United

States v. Sonczalla, 561 F.3d 842, 845-46 (8th Cir. 2009) (Minnesota burglary). 

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asserted in the motion.” Donnell v. United States, 826 F.3d 1014, 1016 (8th Cir.

2016). Thus, even if authorization was properly granted, § 2244(b)(2)(A) requires

dismissal of Winarske’s successive motion, unless the claim in fact relies on a new

rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable. See Walker v. United States, 900

F.3d 1012, 1014 & n.2 (8th Cir. 2018). 

Johnson held that the ACCA’s residual clause was void for vagueness. The

residual clause was not an issue when Winarske was sentenced as an armed career

criminal, or when he challenged that determination in his first § 2255 motion. Rather,

the question was whether his class C North Dakota burglary convictions were for

generic burglary and therefore fell within the ACCA’s enumerated-offenses clause. 

In arguing his second § 2255 motion to the district court, Winarske again argued that

his burglary convictions no longer qualify as violent felonies because they do not fall

within the enumerated offenses clause, relying now on Mathis v. United States, 136

S. Ct. 2243 (2016), as well as Descamps. The district court again rejected this

argument on the merits and granted a certificate of appealability. United States v.

Winarske, No. 1:11-cr-86-1, 2017 WL 1743550 (D.N.D. May 4, 2017).

On appeal, Winarske argues that Mathis established that the phrase “building

or occupied structure” in North Dakota’s burglary statute setsforth alternative means

of committing the offense, not alternative elements of different offenses. Therefore,

the North Dakota statute is overbroad because “occupied structure” is defined to

include vehicles “where any person lives or carries on business or other calling,” and

generic burglary does not include burglary of any vehicle. We decline to consider 3

the merits of this enumerated-offenses-clause issue for three reasons. 

This assertion is contrary to the Supreme Court’s recent decision in United

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States v. Stitt, 139 S. Ct. 399 (2018), which may put in doubt our decision construing

the North Dakota burglary statute in United States v. Kinney, 888 F.3d 360, 363-65

(8th Cir. 2018). We need not decide that issue here.

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First, the new rule in Johnson has no nexus to this claim. See 135 S. Ct. at

2563 (“Today’s decision does not call into question application of the Act to the four

enumerated offenses . . . .”); Stanley v. United States, 827 F.3d 562, 564 (7th Cir.

2016) (“the sole holding ofJohnson isthat the [ACCA’s] residual clause is invalid”). 

Second, neither Mathis nor Descamps announced “a new rule of law, made

retroactive to cases on collateral review by the Supreme Court,” as § 2255(h)(2) and

§ 2244(b)(2)(A) require. Rather, “these decisions are simply the Supreme Court’s

latest interpretations of the categorical approach the Court has long applied in

deciding whether a prior conviction is an ACCA violent felony.” Martin v. United

States, 904 F.3d 594, 597 (8th Cir. 2018), citing Mathis, 136 S. Ct. at 2257, and

Descamps, 570 U.S. at 260. Third, in denying Winarske’s first § 2255 motion, the

district court held that his three class C felony burglary convictions fell within the

ACCA’s enumerated offenses clause. “A claim presented in a second or successive

habeas corpus application under section 2254 that was presented in a prior application

shall be dismissed.” 28 U.S.C. § 2244(b)(1); see In re Baptiste, 828 F.3d 1337, 1339

(11th Cir. 2016), citing cases applying § 2244(b)(1) to successive § 2255 motions.

For these reasons, the district court properly denied Winarske’s successive

§ 2255 motion. The Order of the district court dated May 4, 2017, is affirmed.

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