In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3549
PATRICK HROBOWSKI,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15‐cv‐8670 — Samuel Der‐Yeghiayan, Judge.
____________________
ARGUED FEBRUARY 21, 2018 — DECIDED SEPTEMBER 17, 2018
____________________
Before RIPPLE, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. In Johnson v. United States, the Su‐
preme Court held that the so‐called residual clause of the
Armed Career Criminal Act is unconstitutional. 135 S. Ct.
2551 (2015). In Welch v. United States, the Court determined
that its decision in Johnson should apply retroactively. 136 S.
Ct. 1257 (2016). So a prisoner who was sentenced under the
2 No. 16‐3549
unconstitutional residual clause can move to vacate his sen‐
tence, as long as the error affected his sentence. Van Cannon v.
United States, 890 F.3d 656, 661 (7th Cir. 2018).
At issue in this case is whether demonstrating that a John‐
son error occurred allows a petitioner to collaterally attack his
sentence on other grounds in a successive § 2255 petition. In
this case, the petitioner cannot. His other basis for challenging
his sentence is procedurally barred and Johnson does not serve
as a way around that bar. Accordingly, we affirm the district
court’s denial of the petition.
I. BACKGROUND
A criminal defendant is subject to an enhanced sentence
under the Armed Career Criminal Act (“ACCA”) if he has
previously been convicted of three or more violent felonies.
18 U.S.C. § 924(e). Patrick Hrobowski was convicted of two
federal firearms offenses in 2006 and sentenced to 264
months’ imprisonment under the ACCA based on four prior
Illinois state‐law convictions: aggravated battery, second‐de‐
gree murder, aggravated discharge of a firearm, and aggra‐
vated fleeing from a police officer. His conviction was af‐
firmed on direct appeal.
Hrobowski has since moved several times to vacate his
sentence under 28 U.S.C. § 2255. Section 2255 allows a pris‐
oner to vacate his sentence if he can demonstrate that it was
imposed in violation of the Constitution, that the court lacked
jurisdiction to impose the sentence, that the sentence exceeds
the maximum authorized by law, or that the sentence is oth‐
erwise subject to collateral attack. 28 U.S.C. § 2255(a). Succes‐
sive § 2255 petitions must be certified by a panel of the appro‐
priate court of appeals to contain newly discovered evidence
No. 16‐3549 3
or “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previ‐
ously unavailable.” 28 U.S.C. § 2255(h).
Hrobowski first moved to vacate his sentence based on al‐
leged jurisdictional problems and ineffective assistance of
counsel. The motion was denied, and neither the district court
nor this court granted a certificate of appealability. Hrob‐
owski then sought authorization to file a successive § 2255 pe‐
tition alleging a violation of Brady v. Maryland, 373 U.S. 83
(1963). That application was also denied. He filed a third pe‐
tition based on Descamps v. United States, 133 S. Ct. 2276 (2013),
and Alleyne v. United States, 133 S. Ct. 2151 (2013). The petition
was denied on the merits, though it should have been dis‐
missed for lack of jurisdiction as it was never authorized by
this court.
In 2015 Hrobowski again sought authorization to file a
successive § 2255 petition following the U.S. Supreme Court’s
decisions in Johnson and Welch, which addressed the “residual
clause” found in the ACCA. The ACCA provides that any
person convicted of certain firearms offenses who had three
previous convictions for a violent felony or serious drug of‐
fense is subject to an enhanced sentence. 18 U.S.C. § 924(e)(1).
The ACCA defines “violent felony” as:
“any crime punishable by imprisonment for a
term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a
firearm, knife, or destructive device that would
be punishable by imprisonment for such term if
committed by an adult, that—
4 No. 16‐3549
(i) has as an element the use, attempted use, or
threatened use of physical force against the per‐
son of another; or
(ii) is burglary, arson, or extortion, involves the
use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical in‐
jury to another….”
18 U.S.C. § 924(e)(2)(B) (emphasis added).
The phrase “or otherwise involves conduct that presents a
serious potential risk of physical injury to another” is known
as the residual clause. In Johnson, the Court found this clause
unconstitutionally vague. 135 S. Ct. at 2557. Following that
decision, sentencing courts cannot enhance a sentence based
on a prior conviction that would fall within that part of the
definition. In Welch, the Court decided that the Johnson rule
applies retroactively. 136 S. Ct. at 1268. Therefore, petitions
based on Johnson errors generally satisfy the requirement for
filing a successive § 2255 petition: the Johnson decision was a
new rule of constitutional law, and the Supreme Court made
the rule retroactive. See Holt v. United States, 843 F.3d 720, 722
(7th Cir. 2016).
This court authorized Hrobowski’s instant petition be‐
cause it was based on alleged Johnson errors. Hrobowski ar‐
gued two of his prior convictions were based on the residual
clause and so should not have been considered qualifying vi‐
olent felony convictions. He supplemented his petition to no‐
tify the court that his civil rights had been restored on the
other two prior convictions. He claimed that he was dis‐
charged from the second‐degree murder conviction in 1998
No. 16‐3549 5
and from the aggravated discharge of a firearm conviction in
2002 and that his rights were fully restored upon discharge.
The district court denied the petition. The court deter‐
mined that one of the prior convictions was based on the re‐
sidual clause, so a Johnson violation occurred, but it was harm‐
less as Hrobowski had three other prior violent felonies. This
court granted a certificate of appealability and directed the
parties to address the application, if any, of the court’s deci‐
sion in Holt v. United States, 843 F.3d 720 (7th Cir. 2016). We
agree that one of the convictions cannot be used to justify
Hrobowski’s sentence following Johnson, but because he was
convicted of three other violent felonies at the time he was
sentenced, Hrobowski’s ACCA sentence was proper. His
claim that two of his other convictions should not be consid‐
ered prior violent felonies because his rights were restored is
procedurally barred. Therefore, the district court was right to
deny Hrobowski’s motion to vacate his sentence.
II. ANALYSIS
When reviewing the denial of a § 2255 petition, we review
the district court’s factual findings for clear error and its legal
conclusions de novo. Torres‐Chavez v. United States, 828 F.3d
582, 585 (7th Cir. 2016). Whether a prior offense qualifies as a
prior violent felony under the ACCA is a question of law that
we review de novo. United States v. Duncan, 833 F.3d 751, 753
(7th Cir. 2016).
To prevail, Hrobowski needed to show that a Johnson error
occurred and that he was prejudiced by that error. That is, that
his sentence should have been lower if not for the Johnson er‐
ror. 135 S. Ct. at 2563. On appeal, Hrobowski and the govern‐
6 No. 16‐3549
ment agree that one, and only one, of Hrobowski’s prior con‐
victions was based on the residual clause and thus should not
have been considered a qualifying violent felony conviction.
The government asserts, however, that Hrobowski suffered
no prejudice because he had other prior convictions that jus‐
tified the ACCA sentence.
Hrobowski, on the other hand, contends the sentencing
court should not have relied upon his convictions of sec‐
ond‐degree murder and aggravated discharge of a firearm to
enhance his sentence because his rights had been restored un‐
der Illinois law for those offenses. He has a valid argument—
the ACCA provides that “[a]ny conviction which has been ex‐
punged, or set aside or for which a person has been pardoned
or has had civil rights restored shall not be considered a con‐
viction for [these] purposes….” 18 U.S.C. § 921(a)(20); see
Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (holding
that an Illinois‐state‐law conviction for which the defendant’s
rights have been restored cannot be counted as a prior violent
felony for purposes of the ACCA). The problem is that Hrob‐
owski’s restoration of rights claim is not based on any new
constitutional rule and so it is not the proper basis for a suc‐
cessive § 2255 petition.
Hrobowski attempts to avoid this bar by suggesting he be
allowed to challenge his sentence on any grounds once he es‐
tablishes that a Johnson error occurred. But a finding that one
predicate offense can no longer be relied on in light of Johnson
does not open the door to other time‐barred claims against the
petitioner’s sentence. Stanley v. United States, 827 F.3d 562, 565
(7th Cir. 2016). In Holt, we authorized the petitioner to file a
successive § 2255 petition that appeared to be based on John‐
son. 843 F.3d at 722. The district court denied the petition and,
No. 16‐3549 7
on appeal, we recognized that the dispositive issue in the case
was actually based on two different cases, “Mathis [v. United
States, 136 S. Ct. 2243 (2016),] and [United States v.] Haney, [840
F.3d 472 (7th Cir. 2016),] not on Johnson and Welch.” Id. Be‐
cause claims based on Mathis and Haney do not satisfy the re‐
quirements for successive § 2255 petitions, the petitioner
could not rely on these claims to demonstrate that a Johnson
error was prejudicial. Id. at 724. For the same reason, Hrob‐
owski is barred from raising his restitution of rights claim for
the first time in his successive § 2255 petition.
In Van Cannon, we allowed the petitioner to collaterally at‐
tack one of his prior convictions to show a Johnson error was
prejudicial. 890 F.3d at 662. But in that case the attack was
based on a change in federal law between the time the peti‐
tioner was sentenced and his § 2255 petition. Id. There has
been no relevant change in the law affecting Hrobowski’s sen‐
tence. Assuming his assertions are true, Hrobowski’s rights
were restored in 1998 and 2002. He had every opportunity
and incentive to challenge the reliance on the convictions for
which his rights had been restored at the time he was sen‐
tenced in 2006 or on direct appeal and failed to do so.
III. CONCLUSION
In sum, Hrobowski had four prior convictions at the time
he was sentenced in this case. He has successfully shown that
one of those convictions no longer justifies an enhanced sen‐
tence under the ACCA. But that does not allow him to bring
collateral attacks against his other convictions based on theo‐
ries available to him at the time he was sentenced. So he is
barred from claiming the court should not have relied on any
8 No. 16‐3549
of the remaining three qualifying prior convictions. And be‐
cause he had three qualifying prior convictions, he suffered
no prejudice and was properly sentenced under the ACCA.
For these reasons, we AFFIRM the district court’s denial
of Hrobowski’s petition.