Rollins v. Krueger
Filing
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ORDER and OPINION entered by Chief Judge James E. Shadid on 11/4/16. Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 1 is DENIED. This matter is now terminated. SEE FULL WRITTEN ORDER. (FDT, ilcd)
E-FILED
Friday, 04 November, 2016 11:41:15 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROBERT DARYL ROLLINS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 16-1230
ORDER AND OPINION
This matter is now before the Court on Petitioner Rollins’ Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the Petition [1] is Denied.
BACKGROUND
Petitioner was convicted of four counts of bank robbery and four counts of using and
carrying a firearm during the robbery in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 924(c)
respectively. He was sentenced to 78 months’ imprisonment for the bank robbery counts, to be
followed by a consecutive 100 years’ imprisonment on the § 924(c) counts. His conviction and
sentence were affirmed on appeal. United States v. Rollins, 301 F.3d 511 (7th Cir. 2002). Rollins
now brings this § 2241 action seeking to vacate, set aside, or correct his sentence pursuant to
Johnson v. United States, 135 S.Ct. 2251 (2015), arguing that his conviction for brandishing a
firearm no longer qualifies as a “crime of violence.” This Order follows.
STANDARD OF REVIEW
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. § 2241 when a
defendant is challenging the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S.
475, 490, 93 S.Ct. 1827 (1973); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). The
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writ of habeas corpus may be granted where the defendant is in custody in violation of the
Constitution or laws or treaties of the United States. 28 U.S.C. 2241(c)(3).
ANALYSIS
Petitioner claims in his § 2241 Petition that his sentence is invalid because the Court
found that he was eligible for a consecutive, mandatory sentence based on a finding that he had
committed a crime of violence under 18 U.S.C. § 924(c). Initially, the Court notes that § 2241 is
not likely the proper vehicle for Petitioner to use to make this challenge. However, given recent
admonitions from the Seventh Circuit that district courts are not to recharacterize pleadings filed
under the wrong statutory section and in the interests of resolving this latest in a series of filings
by Rollins, the Court will assume that Petitioner is asserting a claim of actual innocence and
address the merits of his claim.
On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career
Criminal Act violates due process because the clause is too vague to provide adequate notice.
Johnson v. United States, 135 S.Ct. 2551 (2015). The residual clause of the ACCA struck down
by the Supreme Court has been extended to the residual clause in 18 U.S.C. § 16(b), which is
similar to the definition applied in § 924(c)(3)(B). In Price v. United States, the Seventh Circuit
held that Johnson announced a new substantive rule of constitutional law that the Supreme Court
has categorically made retroactive to final convictions. 795 F.3d 731, 732 (7th Cir. 2015). That
decision also made clear that Johnson is retroactive not only to cases on direct appeal, but also to
cases on collateral review. Id.
Petitioner’s Motion seeks to invoke Johnson, claiming that the holding in that case
established that bank robbery is no longer a “crime of violence” and necessarily rendered the
residual clause of 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague. Johnson invalidated only
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the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). However, the
Seventh Circuit has applied Johnson to the definition of “crime of violence” in 18 U.S.C. §
16(b), which is nearly identical to the language in § 924(c)(3)(B). United States v. Vivas-Ceja,
808 F.3d 719, 723 (7th Cir. 2015). Accordingly, it is plausible that the reasoning of Johnson
applies to the residual clause in § 924(c)(3)(B) and renders it unconstitutionally vague, and the
Seventh Circuit has assumed as much without specifically deciding the issue. United States v.
Armour, ___ F.3d ___, 2016 WL 6440383, at **2-3 (7th Cir. Nov. 1, 2016).
That being said, the record indicates that Petitioner would not be entitled to relief as the
underlying crime at issue here is federal bank robbery, which qualifies as a crime of violence
under 18 U.S.C. § 16(a)(1) rather than the residual clause, as it “has as an element the use,
attempted use, or threatened use of physical force against the person of another.” This
conclusion was essentially confirmed by the Seventh Circuit with respect to the crime of
attempted armed bank robbery in holding that “the federal crime of attempted armed bank
robbery qualifies as a crime of violence under the ‘elements’ clause of the definition, which is
not unconstitutionally vague.” Armour, ___ F.3d ___, 2016 WL 6440383, at *2 (7th Cir. Nov. 1,
2016), citing United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991)(holding that “[a] defendant
properly convicted of bank robbery is guilty per se of a crime of violence, because violence in
the broad sense that includes a merely threatened use of force is an element of every bank
robbery.”) This was so even though the defendant did not actually enter the bank during the
attempted robbery. Id., at **2-3. Accordingly, convictions qualifying under the elements clause
were unaffected by the holding in Johnson. Id. As bank robbery was necessarily a crime of
violence, the Seventh Circuit also affirmed the defendant’s conviction for “using or brandishing a
firearm during and in relation to a ‘crime of violence’” against a Johnson challenge. Id., at *5.
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Rollins would therefore not be entitled to relief under Johnson even if he had brought his
challenge in the proper form.
CONCLUSION
For the reasons stated above, Petitioner’s Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241 [1] is DENIED. This matter is now terminated.
ENTERED this 4th day of November, 2016.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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