*225David Walker Bos, Federal Public Defender for D.C., for Defendant/Petitioner.,
RICHARD J. LEON, United States District Judge *226Petitioner Matthew West ("defendant"
or "West") moves to vacate and correct his sentence under 28 U.S.C. § 2255. See
Suppl. Mot. to Vacate J. Under 28 U.S.C. § 2255 ("Pet.'s Suppl. Mot.") [Dkt. #
60]; Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Pet.'s
Mot.") [Dkt. # 57]. Following his conviction for possessing a firearm as a convicted
felon, West was sentenced as an armed career criminal pursuant to the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e). In his § 2255 pleadings, West argues
that his sentence is invalid in light of the Supreme Court's decision in Johnson
v. United States , --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which
struck down as unconstitutionally vague a provision of ACCA known as the "residual
clause.", With the residual clause invalidated, West contends that he no longer
qualifies as an armed career criminal under ACCA. Specifically, West asserts that
his prior felony convictions for New Jersey second-degree aggravated assault, third-degree
aggravated assault, and second-degree robbery do not constitute "violent felon[ies]"
under ACCA's remaining applicable provision, known as the "elements clause." Pet.'s
Suppl. Mot. 2; see 18 U.S.C. § 924(e)(2)(B). That is so, according to West, because:
1) the New Jersey assault statute requires only that a defendant act recklessly;
and 2) the relevant provision of the New Jersey robbery statute does not require
the use of violent physical force. See Pet.'s Suppl. Mot. 16-20. West therefore
asks this Court to vacate and correct his sentence., The Government counters that
West's motion should be dismissed on the procedural grounds that it does not satisfy
the requirements for second or successive petitions, is time-barred, and is procedurally
defaulted. See U.S.'s Opp'n to Def.'s Mot. & Suppl. Mot. Vacate J. Under 28 U.S.C.
§ 2255 ("U.S.'s Opp'n") 11-19 [Dkt. # 64]. On the merits, the Government argues
that West's prior convictions for assault and robbery qualify as violent felonies
under ACCA's elements clause and that West's sentence should therefore stand.
Id. at 19-32. Upon consideration of the pleadings and the relevant law, and for
the reasons discussed below, I agree with the Government that West's motion to
vacate and correct his sentence is procedurally barred and, in any event, fails
on the merits., Federal law prohibits convicted felons, such as West, from possessing
firearms. See 18 U.S.C. § 922(g)(1). On October 1, 2004, a jury convicted West of
violating that prohibition. See 10/1/2004 Minute Entry. Generally, prior felons
found guilty of unlawfully possessing a handgun in violation of § 922(g)(1) face
up to 10 years' imprisonment. See 18 U.S.C. § 924(a)(2). That sentencing calculus
changes, however, if the individual qualifies for a sentencing enhancement under
ACCA., As relevant here, ACCA provides that a defendant convicted of violating §
922(g)(1) is subject to a mandatory minimum prison term of 15 years if the defendant
has three prior convictions for a "violent felony." Id. § 924(e)(1). ACCA defines
"violent felony" as "any crime punishable by imprisonment for a term exceeding one
*227year" that (1) "has as an element the use, attempted use, or threatened use
of physical force against the person of another"; (2) "is burglary, arson, or extortion,
[or] involves use of explosives"; or (3) "otherwise involves conduct that presents
a serious potential risk of physical injury to another." Id. § 924(e)(2)(B). Those
provisions, respectively, have come to be known as ACCA's "elements clause," "enumerated
clause," and "residual clause." See United States v. Booker , 240 F.Supp.3d 164,
167 (D.D.C. 2017)., At the time of his § 922(g)(1) conviction in this Court, West's
prior felony record included New Jersey state convictions for second-degree aggravated
assault, third-degree aggravated assault, and second-degree robbery. Pet.'s Suppl.
Mot. 2; see 2/8/2005 Revised Presentence Investigation Report ("PSR") 6-8. Based
on that record, both the Government and West agreed with the Probation Office's
conclusion that West was subject to a mandatory minimum of 15 years' imprisonment
under ACCA. See PSR ¶ 15 ("[T]he defendant has at least 3 prior convictions for
'violent felonies' as defined under 18 U.S.C. § 924(e)(2)."); see id. ¶ 67 & p.
16. I accepted that assessment and, on March 24, 2005, sentenced West to a prison
term of 216 months. See Judgment 1-2 [Dkt. # 29]., Over a decade later, during which
West tried but failed to set aside his conviction and sentence both on direct appeal
and through multiple collateral challenges,1 the Supreme Court issued its 2015 decision
in Johnson v. United States ("Johnson 2015"). --- U.S. ----, 135 S.Ct. 2551, 192
L.Ed.2d 569 (2015). In that decision, for reasons this Court need not detail, the
Supreme Court struck down ACCA's "residual clause" as unconstitutionally vague.
See id. at 2563. The next year, in Welch v. United States , --- U.S. ----, 136 S.Ct.
1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson 2015 announced
a new, substantive constitutional rule and, as such, applied retroactively to cases
on collateral review. See id. at 1265., Shortly after the decision in Welch , the
Chief Judge of our Court issued a Standing Order containing procedures to be followed
by defendants asserting post- Johnson 2015 challenges to their sentences. See generally
6/2/2016 Standing Order.2 The Standing Order appointed the Office of the Federal
Public Defender for the District of Columbia to represent eligible defendants who
may qualify for relief from their sentences under Johnson 2015 and Welch . Id. at
1. Pursuant to the Standing Order's instructions, West, through counsel, filed
an abridged motion under *22828 U.S.C. § 2255 to vacate and correct his sentence
in light of Johnson 2015. See generally Pet.'s Mot. After receiving permission
to file a second or successive § 2255 motion from D.C. Circuit, see In re Matthew
West , No. 16-3049 (D.C. Cir. July 1, 2016) ("Circuit Order") [Dkt. # 58], West
filed the supplemental § 2255 motion currently pending before the Court, see Pet.'s
Suppl. Mot., 28 U.S.C. § 2255 permits a federal prisoner such as West to file a
motion to "vacate, set aside or correct" a sentence that "was imposed in violation
of the Constitution or laws of the United States" or "was in excess of the maximum
authorized by law." Id. § 2255(a). In his supplemental motion, West argues that
he is entitled to relief under the terms of § 2255 because he no longer qualifies
as an armed career criminal under ACCA-and thus cannot lawfully be subjected to
ACCA's 15-year mandatory minimum-following Johnson 2015's invalidation of the
residual clause. See Pet.'s Suppl. Mot. 2. That is so, West asserts, because his
prior felony convictions for New Jersey second-degree aggravated assault, third-degree
aggravated assault, and second-degree robbery do not qualify as violent felonies
under the remaining applicable ACCA provision known as the elements clause. See
id. at 13-21. West therefore asks this Court to grant his § 2255 motion, vacate
his original mandatory-minimum sentence, and either resentence or discharge him.
Id. at 22-23., The Government opposes West's motion on both procedural and substantive
grounds. To start, the Government argues that West's motion does not satisfy the
statutory requirements for a second or successive § 2255 motion-specifically, the
requirement that his claim "relies on a new rule of constitutional law." 28 U.S.C.
§ 2244(b)(2)(A) ; see U.S.'s Opp'n 11-15. In the alternative, the Government argues
that West's motion is untimely under § 2255(f)'s one-year statute of limitations
and is procedurally defaulted due to West's failure to raise his ACCA claims at
trial or on direct appeal. See U.S.'s Opp'n 15-19. On the merits, the Government
asserts that Johnson 2015 does not entitle West to relief because West's prior
convictions for New Jersey aggravated assault and robbery qualify as violent felonies-and
thus expose him to ACCA's 15-year mandatory minimum sentence-under ACCA's still-valid
elements clause. See id. at 19-32. Having considered those arguments, I agree with
the Government that West's § 2255 petition should be DENIED. A discussion of the
various procedural and substantive issues presented by West's motion will quite
clearly demonstrate why., *229First, the Government argues that West's motion fails
to satisfy the threshold standard for a second or successive motion under 28 U.S.C.
§ 2255. That standard, in relevant part, authorizes a district court to entertain
a second or successive § 2255 motion only when the applicant shows that the claim
relies on "a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable." Id. § 2255(h)(2)
; see also id. § 2244(b)(2)(A). The Government contends that West has failed to
carry his threshold burden to show that his motion in fact "relies" upon Johnson
2015. Id. § 2255(h)(2). That conclusion follows, the Government asserts, because
West has not demonstrated that his mandatory minimum sentence was indeed rendered
pursuant to ACCA's now-invalid residual clause, as opposed to the constitutionally
permissible elements clause., Second, the Government argues that West's motion
runs afoul of the one-year statute of limitations period applicable to § 2255 motions.
See id. § 2255(1). When a habeas petitioner asserts a challenge based upon a right
"newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review," the one-year limitations period begins running on "the date
on which the right asserted was initially recognized by the Supreme Court." Id.
§ 2255(f)(3). The Government concedes that Johnson 2015 triggered a new one-year
period for the filing of § 2255 motions, see U.S.'s Opp'n 16; West's initial
post- Johnson 2015 petition, moreover, was filed within that one-year period. See
generally Pet.'s Mot. Notwithstanding those considerations. the Government maintains
that West's claim is untimely because, without demonstrating that he was sentenced
pursuant to the residual clause (as opposed to the elements clause), West cannot
show that his claim is "in fact predicated on" Johnson 2015's invalidation of the
residual clause. U.S.'s Opp'n 17.4, On one side of the issue, several courts-including
some of my colleagues-have held that, to overcome the various *230procedural hurdles
applicable to collateral habeas challenges, a post- Johnson 2015 habeas petitioner
need only show that his sentence "may have been predicated on application of the
now-void residual clause." United States v. Winston , 850 F.3d 677, 682 (4th Cir.
2017) (emphasis added); see also, e.g., United States v. Geozos , 870 F.3d 890,
896 (9th Cir. 2017) ; Booker , 240 F.Supp.3d at 169 : United States v. Wilson ,
249 F.Supp.3d 305, 311-13 (D.D.C. 2017) ; United States v. Butler , 253 F.Supp.3d
133, 140-41 (D.D.C. 2017). Under that framework, for which West advocates, a sentencing
court's "silence regarding the basis of the defendant's sentence" is "construed
... in the petitioner's favor." Dimott v. United States , 881 F.3d 232, 240 n.6
(1st Cir. 2018) (citing In re Chance , 831 F.3d 1335, 1341 (11th Cir. 2016) ). Such
a rule is necessary, according to the courts that have adopted it, to avoid an "absurd"
scheme under which "certain criminal defendants would be barred from raising an
otherwise cognizable claim under Johnson (2015) because the sentencing judge did
not specify which clause she was relying on at a time when that was not required."
Butler , 253 F.Supp.3d at 140 (internal quotation marks omitted). "To require more,"
some courts have cautioned, "would render Johnson relief virtually impossible to
obtain." Booker , 240 F.Supp.3d at 169 (internal quotation marks omitted)., In my
view, the latter approach, under which a post- Johnson 2015 habeas petitioner bears
the burden of showing by a preponderance of the evidence that he was sentenced pursuant
to the residual clause, is more consistent with the "clear limits established by
Congress for when federal post-conviction petitions may be entertained by the federal
courts." Id. at 241. Allowing petitioners to evade AEDPA's procedural requirements
by pointing to a "mere possibility" that their claims turn on Johnson 2015 cannot
be squared with the statutory text of § 2244(b), under which a habeas "applicant
must actually 'show' that the claim satisfies the standard" for second or successive
petitions. Id. at 240 ; see Tyler , 533 U.S. at 661 n.3, 121 S.Ct. 2478 *231(alteration
omitted). Nor does such an approach accord with the "presumption of finality and
legality" that attaches to judgments and sentences following the process of direct
review. Dimott , 881 F.3d at 241 (citing In re Moore , 830 F.3d 1268, 1272 (11th
Cir. 2016) (internal quotation marks omitted) (quoting Barefoot v. Estelle , 463
U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) )., Here, West acknowledges
that the available sentencing-stage documents, including the parties' sentencing
memoranda and the Presentence Investigation Report, do not specify the ACCA provision
upon which his sentence was based. See Pet.'s Suppl. Mot. 3-4.5 Unfortunately for
West, moreover, a review of the "relevant background legal environment that existed
at the time of [his] sentencing" undermines, rather than supports, the argument
that he was likely sentenced under the residual clause. Washington , 890 F.3d at
896 (internal quotation marks omitted). How so?, In his supplemental motion, West
asserts that his prior New Jersey assault and robbery convictions do not qualify
as violent felonies under the elements clause. He therefore claims that, following
Johnson 2015's invalidation of the residual clause, he no longer qualifies for
ACCA's 15-year mandatory minimum sentence. Unfortunately for West, I disagree.
Before explaining why, it is necessary to provide a brief overview of the framework
for evaluating West's prior convictions., To determine whether a prior conviction
qualifies as a "violent felony" under ACCA, "courts use what has become known as
the 'categorical approach.' " Descamps v. United States , 570 U.S. 254, 257, 133
S.Ct. 2276, 186 L.Ed.2d 438 (2013). Under that approach, courts determine whether
a defendant's prior offense of conviction constitutes a "violent felony" for purposes
of ACCA by looking solely to the elements of the offense, as opposed to the defendant's
actual conduct. See Mathis v. United States , --- U.S. ----, 136 S.Ct. 2243, 2248-49,
195 L.Ed.2d 604 (2016) ; see also Johnson 2015, 135 S.Ct. at 2557. In other words,
if the statutory elements of the offense criminalize conduct beyond that which ACCA
covers, then, under the categorical approach, the offense does not qualify as a
"violent felony"-even if, in committing the offense, the defendant clearly engaged
in violent conduct .6, *233In this case, the upshot of the categorical approach
is this: If the least serious conduct criminalized by the New Jersey assault and
robbery statutes does not involve "the use, attempted use, or threatened use of
physical force against the person of another," 18 U.S.C. § 924(e)(2)(B)(i), that
offense categorically does not qualify as a "violent felony" under ACCA. See Descamps
, 570 U.S. at 261, 133 S.Ct. 2276.7 With that rule in mind, I now examine West's
prior convictions for New Jersey aggravated assault and robbery., As should be familiar
by now, ACCA's elements clause defines a "violent felony" as one that "has 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). West argues that his convictions
for New Jersey second- and third-degree aggravated assault do not qualify as violent
felonies under that provision. Pet.'s Suppl. Mot. 16-18.8 West's argument is premised
on the fact that New Jersey second-degree and third-degree aggravated assault can
be violated with a mens rea of recklessness. Id. at 17. Relying heavily upon the
analysis of a few of my district court colleagues, West argues that a "reckless
application of force is not sufficient to constitute the 'use' of physical force"
under the elements clause. Id. (internal quotation marks omitted); see also Supplement
to Reply Mem. Supp. Mot. & Suppl. Mot. to Vacate Judgment Under 28 U.S.C. § 2255,
at 1 [Dkt. # 68] (noting that "multiple district courts in this circuit have rejected
the Government's argument that a reckless mens rea is sufficient for a crime to
qualify as a 'violent felony' under the elements clause")., Unfortunately for
West, his argument is foreclosed by our Circuit's recent opinion in United States
v. Haight , 892 F.3d 1271 (D.C. Cir. 2018). In Haight , Judge Kavanaugh, joined
by Chief Judge Garland and Judge Srinivasan, squarely confronted and rejected the
argument that *234an assault that "can be committed recklessly ... does not categorically
require the use of violent force 'against the person of another' within the meaning
of ACCA." Id. at 1280. Relying on the Supreme Court's 2016 decision in Voisine
v. United States , --- U.S. ----, 136 S.Ct. 2272, 195 L.Ed.2d 736, which held that
reckless assaults qualify as "the use or attempted use of physical force" under
18 U.S.C. § 921(a)(33)(A)(ii), id. at 2278, our Circuit concluded that "[a]s long
as a defendant's use of force is not accidental or involuntary, it is 'naturally
described as an active employment of force,' regardless of whether it is reckless,
knowing, or intentional." Haight , 892 F.3d at 1281 (quoting Voisine , 136 S.Ct.
at 2279 ).9 That holding controls here: West's convictions for New Jersey second-
and third-degree aggravated assault qualify as violent felonies under ACCA's elements
clause, notwithstanding the fact that those offenses may be committed with a mens
rea of recklessness.10, West argues that he is entitled to relief for a second,
independent reason. According to West, his New Jersey second-degree robbery conviction
does not qualify as a "violent felony" under the elements clause, as interpreted
in (Curtis) Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d
1 (2010), because the statutory section under which he was convicted requires only
the use of de minimis -as opposed to "violent"-physical force. Pet.'s Suppl. Mot.
19-20 (quoting (Curtis) Johnson , 559 U.S. at 140, 130 S.Ct. 1265 )., West's argument
with respect to his New Jersey second-degree robbery conviction relies on the Supreme
Court's decision in (Curtis) Johnson. In that case, the Supreme Court held that
the term "force" as used in ACCA's elements clause "means violent force-that is,
force capable of causing physical pain or injury to another person." 559 U.S. at
140, 130 S.Ct. 1265. In so holding, the Court distinguished "force" as used in ACCA
from the "more specialized legal usage of the word 'force,' " which "describ[ed]
one of the elements of the common-law crime of battery" and could be "satisfied
by even the slightest offensive touching." Id. at 139, 130 S.Ct. 1265. Applying
its definition of force, the Supreme Court concluded that a conviction for simple
battery under Florida law, which required "proof of only the slightest unwanted
physical touch," did not satisfy ACCA's elements clause. Id. at 136-37, 145, 130
S.Ct. 1265., Ultimately, the Sein Court held that a defendant's "sudden snatching
of a purse from the grasp of its owner," during which the defendant used no force
other than that required to slide the purse" from under the victim's arm, did not
"involve the type of force" required to support a conviction under the robbery statute.
590 A.2d at 666. Subsequent New Jersey cases applying the teachings of Sein confirm
that convictions under the robbery statute require an "elevate[d]" showing of force
as compared to convictions under the theft statute. Id. Compare New Jersey v. Pantusco
, 330 N.J.Super. 424, 750 A.2d 107, 111-14 (N.J. Super. Ct. App. Div. 2000) (evidence
that the defendant, while in his vehicle, "grabbed" victim's purse and "accelerat[ed]
the gas," thereby "dragging or pulling the victim[ ]," was sufficient to sustain
robbery convictions), abrogated on other grounds by New Jersey v. Hill , 182 N.J.
532, 868 A.2d 290 (2005) ; New Jersey v. Baldwin , 2015 WL 8547003, at *2 (N.J.
Super. Ct. App. Div. Dec. 14, 2015) (upholding robbery conviction where victim testified
that defendant's "grabbing motion pulled her out of the car" and "spun her around")
(brackets omitted); New Jersey ex rel. Q.M. , 2013 WL 69245, at *3 (N.J. Super.
Ct. App. Div. Jan. 8, 2013) (sufficient evidence to establish robbery where defendant
"slapped the employee in furtherance" of theft from store); New Jersey v. Norton
, 2007 WL 506455, at *3 (N.J. Super. Ct. App. Div. Feb. 20, 2007) (victim's testimony
that "defendant pushed her shoulder and engaged in a tug of war for her purse" and
only secured purse "after the strap on her bag broke" was sufficient to support
robbery conviction), with New Jersey v. Smalls , 310 N.J.Super. 285, 708 A.2d 737,
739-40 (N.J. Super. Ct. App. Div. 1998) (evidence that defendant "bump[ed]" victim's
"jacket pocket" in the course of taking her wallet was not "sufficient evidence
of force to. raise" pick pocket offense from theft "to a second degree robbery").,
*237requires more than "nominal contact" or "the slightest offensive touching."
559 U.S. at 138-39, 130 S.Ct. 1265. As the Sein decision emphasizes, a conviction
for robbery under subsection (a)(1)'s force clause will stand only when there has
been a showing of an "elevat[ed]" use of force by the defendant. Sein , 590 A.2d
at 666. Specifically, to be found guilty of robbery under subsection (a)(1), a defendant
must have engaged in the "violence associated with 'wresting' "-that is, "pull[ing],
forc[ing], or mov[ing] by violent wringing or twisting movements"-something from
the victim. Id. at 669 (emphasis added) (internal quotation marks omitted)., For
the foregoing reasons, West's prior convictions for New Jersey second-degree aggravated
assault, third-degree aggravated assault, and second-degree robbery qualify as violent
felonies under ACCA's elements clause. As such, West's prior convictions *238render
him subject to ACCA's 15-year mandatory minimum, notwithstanding Johnson 2015's
invalidation of the residual clause. West has therefore failed to demonstrate his
entitlement to sentencing relief under 28 U.S.C. § 2255, and the Court accordingly
DENIES his pending motions to vacate and correct his sentence. An Order consistent
with this decision accompanies this Memorandum Opinion., Our Circuit affirmed West's
conviction on direct appeal, rejecting all of West's challenges to this Court's
pretrial evidentiary rulings and voir dire procedures. See generally United States
v. West , 458 F.3d 1 (D.C. Cir. 2006). In April 2008, West filed a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Dkt. # 41]; that
motion was dismissed as time barred. See 6/8/2009 Mem. Order 4 [Dkt. # 46]. In 2013,
West again petitioned for a correction of his sentence, arguing that the Presentence
Investigation Report had incorrectly computed his criminal history score. See Mot.
Court to Order That Probation Dep't Correct P.S.I. Report 1 [Dkt. # 47]. This Court
construed West's motion as one under § 2255 and, after ordering a response from
the Government, denied the motion on procedural grounds. See 5/12/2014 Mem. Order
3-4 [Dkt. # 54]. Shortly after the issuance of that memorandum order, West filed
yet another motion under § 2255, raising "almost identical" arguments as those contained
within his first § 2255 motion filed in 2008. 5/2/2016 Mem. Order 3 [Dkt. # 56].
That motion was subsequently dismissed as procedurally barred. See id. at 3-4.,
In arguing that this Court should reject the Government's procedural arguments,
West points out that our Circuit authorized the filing of his motion. See Pet.'s
Suppl. Mot. 8 & nn. 8-9; see also Circuit Order. Such authorization, however, is
granted simply upon a petitioner's "prima facie showing that the application satisfies"
the applicable statutory requirements for second or successive motions. 28 U.S.C.
§ 2244(b)(3)(C). As such, circuit authorizations do not absolve district courts
of their statutory directive to "dismiss any claim presented in a second or successive
application that the court of appeals has authorized to be filed unless the applicant
shows that the claim satisfies" the relevant statutory requirements. Id. § 2244(b)(4)
; see, e.g., Tyler v. Cain , 533 U.S. 656, 661 n.3, 121 S.Ct. 2478, 150 L.Ed.2d
632 (2001) (noting that § 2244 establishes different standards of review for successive
motions by courts of appeals and district courts). I therefore must engage in a
de novo evaluation of the appropriateness of West's motion under the governing
provisions. See Brian R. Means, Federal Habeas Manual § 11:82 (2018 ed.) (collecting
cases)., Many jurists have questioned the propriety of the categorical approach,
noting that it "forces judges into an alternative reality" under which "repeat offenders
often avoid sentencing enhancements for their violent crimes." United States v.
Chapman , 866 F.3d 129, 137-38 (3d Cir. 2017) (Jordan, J., concurring); see also
id. (collecting cases questioning categorical approach); Mathis , 136 S.Ct. at 2267-71
(Alito, J., dissenting) (categorical approach "calls for sentencing judges to delve
into pointless abstract questions" and "has increasingly led to results that Congress
could not have intended"). In view of West's actual conduct as reported in the
PSR-conduct that involved pummeling an individual in the head five times with a
sawed off shot gun, beating a fellow inmate in the face, and forcefully removing
jewelry from a victim, see PSR ¶¶ 24-26-this case provides yet another troubling
example of how the categorical approach requires judges to "ignore facts already
known and instead proceed with eyes shut," Chapman , 866 F.3d at 138 (Jordan, J.,
concurring).