### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 2683

J OHN W. D AWKINS

, Applicant

,

v.

U NITED S TATES OF A MERICA

, Respondent

.

____________________

On Motion for an Order Authorizing

the District Court to Entertain a Second or Successive

Motion for Collateral Review

____________________

S UBMITTED J UNE 24, 2016

— D ECIDED J ULY 15, 2016

____________________

Before W OOD

, Chief Judge

, and P OSNER and H AMILTON

, Cir

‐

cuit Judges

.

P ER C URIAM

. John Dawkins has filed an application pursu

‐

ant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a

successive motion to vacate under § 2255. Dawkins, who was

sentenced as a career offender, wants to challenge his sen

‐

tence under Johnson v. United States

, 135 S. Ct. 2551 (2015),

which held that the residual clause of the Armed Career2 No. 16

‐ 2683

Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally

vague. We assume for purposes of this opinion that Johnson

also invalidates the similar residual clause in the career

‐ of

‐

fender guideline.

Dawkins was convicted of bank robbery, 18 U.S.C.

§ 2113(a), and using a firearm in furtherance of a crime of vi

‐

olence, id. § 924(c). He was sentenced as a career offender to

262 months’ imprisonment. His classification as a career of

‐

fender rests on Illinois convictions for aggravated vehicular

hijacking, 720 ILCS 5/18

‐ 4 (1993), and residential burglary, 720

ILCS 5/19

‐ 3 (1985). He previously has been denied permission

to file a successive § 2255 motion under Johnson v. United

States

, 135 S. Ct. 2551 (2015). See Dawkins v. United States

, 809

F.3d 953 (7th Cir. 2016). In denying the previous application,

we concluded that residential burglary in Illinois is equivalent

to generic burglary of a dwelling, which is enumerated as a

crime of violence in the sentencing guidelines. See id. at 956;

U.S.S.G. § 4B1.2(a)(2).

Dawkins again asks permission to challenge his sentence

under Johnson

, but this time he also relies on the Supreme

Court’s recent decision in Mathis v. United States

, No. 15

‐ 6092,

2016 WL 3434400 (U.S. June 23, 2016). In Mathis

, the Supreme

Court considered Iowa’s burglary statute, which forbids en

‐ tering “an occupied structure” without permission with the

intent to commit a felony. I OWA C ODE § 713.1. “Occupied

structure” is defined by Iowa as “any building, structure, ap

‐

purtenances to buildings and structures, land, water or air ve

‐

hicle, or similar place adapted for overnight accommodation

of persons, or occupied by persons for the purpose of carrying

on business or other activity therein, or for the storage or safe

‐ keeping of anything of value.” Id. § 702.12. The SupremeNo. 16

‐ 2683 3

Court first explained that the statute is broader than “generic

burglary,” which is enumerated as a violent felony in the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii).

See Mathis

, 2016 WL 3434400, at *5. The Court next considered

how Iowa courts interpret this statute and determined that

the different locations are not alternative elements creating

separate crimes, but instead are simply alternative means of

violating a single locational element. See id. at *5, 10. So, the

Court concluded, the district court’s reliance on a conviction

for Iowa burglary cannot be saved by looking to charging pa

‐

pers and considering whether the defendant actually burglar

‐

ized a building or dwelling; the statute is nondivisible and

categorically not a violent felony. See id. at *4, 12.

Dawkins contends that Illinois’s burglary statutes are sim

‐ ilarly nondivisible and broader than generic burglary. He

points out that the general burglary statute applies to entries

into “a building, housetrailer, watercraft, aircraft, motor vehi

‐

cle, railroad car, or any part thereof,” 720 ILCS 5/19

‐ 1, and res

‐

idential burglary can be committed by entering into a “house,

apartment, mobile home, trailer, or other living quarters ,” id.

5/2

‐ 6(b) (emphasis added). But even if Mathis does make a dis

‐

trict court’s reliance on Illinois burglary suspect for purposes

of the career

‐ offender guideline or ACCA, which we do not

decide now, Dawkins asks for permission to bring this claim

as part of a larger claim under Johnson

. He has already been

denied permission to file a successive § 2255 motion based on

Johnson

, so this claim is barred by 28 U.S.C. § 2244(b)(1). See

Brannigan v. United States

, 249 F.3d 584, 586–89 (7th Cir. 2001);

Bennett v. United States

, 119 F.3d 470, 471–72 (7th Cir. 1997).

Dawkins argues in his reply that Mathis provides an inde

‐ pendent basis for authorization. He cites Alexander v. United4 No. 16

‐ 2683

States

, 121 F.3d 312 (7th Cir. 1997), for the proposition that any

intervening change in the law would allow a successive ap

‐ plication. This proposition clearly is not true, and Alexander

does not say otherwise; only new rules of constitutional law,

made retroactive by the Supreme Court, can provide a basis

for authorization. See 28 U.S.C. §§ 2255(h)(2), 2244(b)(2)(A);

Alexander

, 121 F.3d at 314–15 (denying application because

applicant did “not point to any new rule made retroactive by

the Supreme Court and [did] not have new evidence showing

his innocence”). Mathis did not announce such a rule; it is a

case of statutory interpretation. An independent claim based

on Mathis must be brought, if at all, in a petition under 28

U.S.C. § 2241. See Brown v. Caraway

, 719 F.3d 583, 594–96 (7th

Cir. 2013); In re Davenport

, 147 F.3d 605, 611–12 (7th Cir. 1998).

We note that any § 2241 petition would need to be filed in the

district where the petitioner is in custody. See 28 U.S.C.

§ 2241(a); F ED

. R. A PP

. P. 22(a).

Accordingly, we DENY authorization and DISMISS

Dawkins’s application.