                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1220
                         ___________________________

                            Deshawn Maurice Fletcher

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Lincoln
                                  ____________

                          Submitted: November 17, 2016
                              Filed: May 26, 2017
                                 ____________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

       Deshawn Fletcher appeals the denial of his motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his criminal sentence. For the reasons below, we affirm
the district court.1

      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
                                          I.

       Fletcher pleaded guilty in August 2012 to one count of possession of a firearm
by a felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to 210 months, which the district
court subsequently reduced to 158 months under Federal Rule of Criminal Procedure
35(b). Fletcher did not appeal, and his conviction became final on August 16, 2013,
when the time to appeal the district court’s amended judgment expired. See Fed. R.
App. P. 4(b)(1)(A); Never Misses A Shot v. United States, 413 F.3d 781, 782 (8th Cir.
2005) (per curiam) (noting that a conviction becomes final in the absence of an appeal
on the date the time to appeal expires). His ACCA predicate offenses consisted of
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). At
sentencing, Fletcher did not object to the revised presentence investigation report’s
ACCA classification. Thus, the district court did not have occasion to articulate how
Fletcher’s terroristic threats convictions qualified as ACCA predicate offenses.
Fletcher filed a motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 on November 13, 2015 after the Supreme Court invalidated the residual
clause of the ACCA. See Johnson v. United States, 135 S. Ct. 2551, 2563 (2015);
Welch v. United States, 136 S. Ct. 1257, 1268 (2016) (applying Johnson
retroactively). The district court denied Fletcher’s motion, determining that his prior
convictions for making terroristic threats qualify under the force clause. Fletcher
appeals.

                                          II.

       We review de novo a “district court’s determination of whether [a] conviction
qualifies as a violent felony under the ACCA.” United States v. Schaffer, 818 F.3d
796, 798 (8th Cir. 2016) (citation omitted). Under the ACCA, a person convicted of
being a felon in possession of a firearm is subject to a mandatory minimum sentence

                                         -2-
of fifteen years if he has three prior convictions for violent felonies or serious drug
offenses. 18 U.S.C. § 924(e)(1). Fletcher does not dispute that he has been convicted
of a qualifying serious drug offense. Thus, the only question is whether his two
Nebraska felony convictions for making terroristic threats qualify as violent felonies.

      The ACCA defines a violent felony as:

      [A]ny 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—
             (i) has as an element the use, attempted use, or threatened use of
             physical force against the person of another; or
             (ii) is burglary, arson, or extortion, [or] involves the use of
             explosives . . . .2

Id. at § 924(e)(2)(B).

       The key question in this case is whether a conviction under the Nebraska
terroristic threats statute qualifies as a violent felony under the ACCA without the
residual clause. However, Fletcher also challenges whether a juvenile conviction for
making terroristic threats can meet the preliminary requirement that a qualifying
juvenile offense “involv[e] the use or carrying of a firearm, knife, or destructive
device.” See id. The parties have generally assumed that this question is part of a
single Johnson claim, but we disagree. 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. In this way, the question of whether a juvenile conviction
involved the use or carrying of a firearm, knife, or destructive device is completely


      2
       The residual clause Johnson invalidated is omitted.

                                           -3-
separate from the question of whether the juvenile conviction is an enumerated
offense or qualifies under the force clause. See 924(e)(2)(B)(i), (ii). Indeed, the only
way in which the residual clause could have affected a juvenile conviction is if the
offense first met the preliminary condition that it involve a firearm, knife, or
destructive device. Thus, Fletcher’s contention that his juvenile conviction did not
involve the use or carrying of a firearm, knife, or destructive device is a separate claim
distinct from his Johnson claim. As a result, it must be timely and not procedurally
defaulted on its own. See DeCoteau v. Schweitzer, 774 F.3d 1190, 1192 (8th Cir.
2014) (explaining that timeliness must be assessed on a claim-by-claim basis);
Keithley v. Hopkins, 43 F.3d 1216, 1217-18 (8th Cir. 1995) (analyzing procedural
default on a claim-by-claim basis).

       The Government conceded that Fletcher’s § 2255 motion was timely and did
not raise procedural default either below or on appeal. However, we have the
authority to raise either issue sua sponte. Wood v. Milyard, 566 U.S. 463, 471-72
(2012); King v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001) (en banc). Usually, we
consider the case as the parties present it, but we may choose to raise procedural
default or timeliness sua sponte in “exceptional cases” where the Government has not
intentionally or strategically chosen not to raise the issues. Wood, 566 U.S. at 471
(quotation and citation omitted); see Jones v. Norman, 633 F.3d 661, 666 (8th Cir.
2011) (“We have discretion to do so and have done so to correct an obviously
inadvertent omission or an obvious computational error.” (quotations and citations
omitted)). In this case, the Government’s failure to raise procedural default was not
intentional or strategic but rather came from the mistaken assumption held by both
parties (as well as the district court) that the question of whether the juvenile
conviction involved the use or carrying of a firearm, knife, or destructive device is
part of Fletcher’s Johnson claim. In these circumstances, we consider it appropriate
to raise procedural default sua sponte. Having provided the parties notice and the
opportunity to be heard through supplemental briefing, see Dansby v. Hobbs, 766 F.3d



                                           -4-
809, 824 (8th Cir. 2014), we determine that Fletcher’s claim that his juvenile offense
did not involve the use or carrying of a firearm, knife, or destructive device is
procedurally defaulted.

       “Habeas review is an extraordinary remedy and will not be allowed to do
service for an appeal. Thus, a petitioner may not raise an issue before the district
court for the first time in a § 2255 motion if the issue was not presented on direct
appeal from the conviction.” Jennings v. United States, 696 F.3d 759, 762 (8th Cir.
2012) (quotations and citations omitted). In his § 2255 motion and throughout the
appeal, Fletcher argues that Descamps v. United States, 133 S. Ct. 2276 (2013),
prevents a court from looking beyond the elements of the offense in determining
whether his juvenile conviction involved the use or carrying of a firearm, knife, or
destructive device. The Supreme Court decided Descamps on June 20, 2013. The
district court entered its amended judgment on August 2, 2013, and Fletcher’s
sentence became final on August 16, 2013 when the time to appeal expired. See Fed.
R. App. P. 4(b)(1)(A); Never Misses A Shot, 413 F.3d at 782. Fletcher had the
opportunity to raise his Descamps argument before the district court and on direct
appeal but failed to do so. Thus, the claim is procedurally defaulted unless Fletcher
can demonstrate “either cause and actual prejudice, or that he is actually innocent.”
See Lindsey v. United States, 615 F.3d 998, 1000 (8th Cir. 2010) (quoting Bousley v.
United States, 523 U.S. 614, 622 (1998)); Bell v. Norris, 586 F.3d 624, 633-34 (8th
Cir. 2009). Fletcher has not demonstrated that he meets either requirement as to this
claim. Therefore, the claim that his juvenile conviction did not involve a firearm,
knife, or destructive device is procedurally defaulted.3



      3
        Even if the claim had not been procedurally defaulted, the one-year time period
to file a § 2255 motion has long since expired as to this claim. See 28 U.S.C.
§ 2255(f)(1) (setting the time to file a § 2255 motion, as relevant here, to within one
year after “the date on which the judgment of conviction becomes final”).


                                         -5-
       Accordingly, we proceed to the central question of this case: whether Fletcher’s
Nebraska convictions for making terroristic threats qualify under an ACCA clause
other than the residual clause. If the convictions cannot qualify under an ACCA
provision other than the residual clause, then Johnson requires resentencing.
However, if the convictions qualify under another clause, then Johnson does not affect
Fletcher’s sentence. Making terroristic threats is not one of the crimes enumerated in
§ 924(e)(2)(B)(ii). Therefore, our analysis turns on whether the Nebraska terroristic
threats statute qualifies under the ACCA force clause, § 924(e)(2)(B)(i).

      The ACCA force clause encompasses crimes that “ha[ve] as an element the use,
attempted use, or threatened use of physical force against the person of another.” 18
U.S.C. § 924(e)(2)(B)(i). The Nebraska terroristic threats statute provides as follows:

      A person commits terroristic threats if he or she threatens to commit any
      crime of violence:
             (a) With the intent to terrorize another;
             (b) With the intent of causing the evacuation of a building, place
      of assembly, or facility of public transportation; or
             (c) In reckless disregard of the risk of causing such terror or
      evacuation.

Neb. Rev. Stat. § 28-311.01(1). Nebraska does not statutorily define “crime of
violence.” However, the Nebraska Supreme Court has defined the term “crime of
violence” as “an act which injures or abuses through the use of physical force and
which subjects the actor to punishment by public authority.” State v. Palmer, 399
N.W.2d 706, 717 (Neb. 1986); see also State v. Rye, 705 N.W.2d 236, 138-39 (Neb.
Ct. App. 2005) (approving the use of this definition in jury instructions).4 Fletcher


      4
        Fletcher contends that Taylor v. United States requires us to rely solely on
statutory definitions. See 495 U.S. 575, 600 (1990). However, Taylor does not
require us to ignore common law definitions, especially given that the Supreme


                                         -6-
argues that the terroristic threats statute does not qualify under the force clause
because it can encompass threats against property.

       We disagree.5 The categorical approach “requires a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that falls
outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007) (applying the categorical approach in the immigration context); see also
United States v. Bell, 840 F.3d 963, 966 (8th Cir. 2016) (applying Gonzales in the
ACCA context).6 In order “[t]o show that realistic probability, an offender . . . must
at least point to his own case or other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for which he argues.” Gonzales, 549


Court’s subsequent opinion in Descamps expressly left open that possibility. 133 S.
Ct. at 2291 (“We may reserve the question whether, in determining a crime’s
elements, a sentencing court should take account not only of the relevant statute’s text,
but of judicial rulings interpreting it.”). By looking to the Nebraska Supreme Court’s
definition of “crime of violence,” we do not engage in a broad survey of judicial
rulings interpreting and applying that term to synthesize a definition out of whole
cloth. Rather, we merely accept the definition provided by the Nebraska Supreme
Court.
      5
       The Government relies on United States v. Clinkscale, 559 F.3d 815, 817-18
(8th Cir. 2009), and United States v. Flannigan, 367 F. App’x 732, 733 (8th Cir.
2010), but both cases concerned the Minnesota terroristic threats statute, which, as we
explain below, materially differs from the Nebraska terroristic threats statute.
Moreover, the defendant in Flannigan conceded that his convictions qualified as
violent felonies under the ACCA. Fletcher does not so concede.
      6
       The district court assumed without deciding that the categorical approach was
required. Because the statute categorically qualifies under the force clause, we
likewise need not determine whether the statute’s construction permits the modified
categorical approach. See Descamps, 133 S. Ct. at 2283, 2293 (requiring the
categorical approach to analyze indivisible statutes, but allowing the modified
categorical approach to analyze divisible statutes).


                                          -7-
U.S. at 193. Fletcher does not provide, nor can we find, a case where Nebraska
applied the terroristic threats statute to a threat to property alone. This makes sense
because the phrase “an act which injures or abuses through the use of physical force,”
Palmer, 399 N.W.2d at 717, standing alone, is most naturally taken to refer to the
injury or abuse of a person. See generally United States v. Kydney, No. 8:13CR165,
2013 WL 4774727, at *11 (D. Neb. Sept. 5, 2013) (unreported) (“The cases [under the
Nebraska terroristic threats statute] involve threats to kill, hurt, or maim, and most fact
patterns show either an attempted battery, an actual physical battery, or a bodily
injury.”).

        Fletcher emphasizes that a threat of arson, which he argues entails only force
against property, could possibly qualify as a terroristic threat. However, the only case
Fletcher cites in support is State v. Smith, No. A-02-1482, 2003 WL 22769284 (Neb.
Ct. App. Nov. 25, 2003), an unpublished decision finding that third degree assault is
not a lesser included offense of terroristic threats. It makes passing, hypothetical
reference to arson in its reasoning. Id. at *5 (“[I]t it is possible to threaten to commit
a violent crime, such as arson, with the intent to terrorize another person without ever
threatening any person in a menacing manner. Thus, the elements of the crime make
it possible to commit the offense of terroristic threats without committing third degree
assault.”). The Nebraska Supreme Court did not adopt this reasoning on appeal. State
v. Smith, 678 N.W.2d 733, 737 (Neb. 2004) (finding third degree assault not a lesser
included offense of terroristic threats because the former requires proof of the victim’s
actual state of mind while the latter requires proof only of the defendant’s intent).
Indeed, not all arson is limited to force against property, because arson of an occupied
building exerts force against the occupants. “‘[T]hat the harm occurs indirectly, rather
than directly (as with a kick or punch), does not matter,’ because otherwise ‘one could
say that pulling the trigger on a gun is not a use of force because it is the bullet, not
the trigger, that actually strikes the victim.’” United States v. Rice, 813 F.3d 704, 706
(8th Cir. 2016) (quoting United States v. Castleman, 134 S. Ct. 1405, 1415 (2014)).



                                           -8-
Arson of an unoccupied building, in contrast, does not involve force against a person.
United States v. Sanchez-Martinez, 633 F.3d 658, 660 (8th Cir. 2011).7 Fletcher
points to no case in which Nebraska has applied the terroristic threats statute to a
threat to commit arson of an unoccupied building. As a result, even if the theoretical
possibility exists that the Nebraska terroristic threats statute could encompass threats
only to property, Fletcher has not demonstrated a realistic probability that Nebraska
would apply the statute in that manner.

       Finally, the Nebraska terroristic threats statute is not analogous to the
Minnesota terroristic threats statute at issue in United States v. Sanchez-Martinez, 633
F.3d at 660, as Fletcher contends. Although the text of the Minnesota terroristic
threats statute is similar to Nebraska’s, Minnesota defined “crime of violence” to
include crimes like “sale of more than ten grams of cocaine in a ninety-day period,
manufacturing methamphetamine in the presence of a child, arson of an unoccupied
building, and shooting at an unoccupied transit vehicle,” which the court described as
not having as an element the use of physical force against the person of another. Id.
(citation omitted). Thus, the Minnesota terroristic threats statute did not qualify under
the ACCA force clause. However, the Nebraska definition is narrower, and, as a
result, Sanchez-Martinez does not compel the same conclusion.




      7
        Notably, the Minnesota definition of “crime of violence” also included arson
of an occupied building, see Minn. Stat. § 609.1095(1)(d) (listing Minn. Stat.
§ 609.561 (arson in the first degree)), but Sanchez-Martinez only characterized arson
of an unoccupied building as not involving the use of force against a person. 633 F.3d
at 660.


                                          -9-
                                         III.

       For the foregoing reasons, Fletcher’s convictions for making terroristic threats
categorically qualify under the ACCA’s force clause and Johnson provides no relief.
Therefore, we affirm the district court’s denial of Fletcher’s motion to vacate, set
aside, or correct his sentence.
                         ______________________________




                                         -10-
