Harris v. United States of America
OPINION,MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DENIED in all respects. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will be filed separately. Signed by District Judge Henry Edward Autrey on 02/09/2015. (CLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
a/k/a ERIC SCALES,
UNITED STATES OF AMERICA,
Case No. 4:14CV1323 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s motion to Vacate, Set Aside
or Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255. The United States of
America has responded to the motion. For the reasons set forth below the Motion
will be denied without hearing.
Facts and Background1
On April 5, 2012, Detective Patrick Welch, of the St. Louis Metropolitan Police
Department (“SLMPD”), applied for a search warrant of Petitioner’s residence located at
8610 North Broadway, Apartment A, within the City of St. Louis. On April 9, 2012,
officers with the SLMPD established surveillance and observed Petitioner, and his wife,
leave the residence. Officers approached Petitioner and placed him under arrest for two
The facts are taken from the Presentence investigation report and the plea agreement filed in
active fugitive warrants. A search incident to arrest revealed a clear, knotted bag
containing five Oxycodone pills and $2,007.00 in U.S. currency. Immediately after the
pills were discovered by officers, Petitioner spontaneously stated, “Those are some pain
pills.” Petitioner was placed under arrest.
The officers then executed the search warrant on Petitioner’s residence. Once
inside, officers asked Petitioner whether there were any narcotics or firearms in the
apartment, to which Petitioner responded, “There’s some drugs in the top dresser drawer
and a pistol in the other room underneath the ottoman.” Petitioner also stated that the
bedroom belonged to him and his wife, but that the drugs and gun were his and that his
wife knew nothing about them.
Pursuant to the search, officers discovered and seized, among other things: (1) a
.22 long rifle caliber, semi-automatic pistol; (2) two bags containing 28 grams of cocaine
base; (3) a bag containing 14.4 grams of heroin; (4) a digital scale with white residue; (5)
a safe containing $4,745.00; and (6) a box containing $1,052.00. During a post-arrest
interview, Petitioner admitted that he sold cocaine base and heroin and that the money
was direct proceeds of those sales. After being transported to the police station, Petitioner
made a written statement again claiming ownership of the gun and the drugs.
The firearm was manufactured outside of the State of Missouri and, therefore,
necessarily traveled in interstate commerce in order to be in Petitioner’s possession. The
firearm was test fired and operated as designed.
A federal grand jury sitting in St. Louis returned a four-count indictment against
Petitioner on January 14, 2004, charging him with: (1) possession with intent to distribute
28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count I); (2)
possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (Count
II); (3) possession of a firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c); and (4) being a felon in possession of a firearm in violation of Title
18 U.S.C. § 922(g) (Count IV). On April 3, 2013, Petitioner elected to enter a plea of
guilty, pursuant to a plea agreement, as to Count IV in exchange for the dismissal of the
On July 1, 2013, this court found that Petitioner was an Armed Career Criminal
pursuant to 18 U.S.C. § 924(e) and sentenced him to a mandatory minimum term of
imprisonment of 180 months. A two-year term of supervised release was also imposed.
Counts I, II and III were dismissed on motion by the United States.
No appeal of the conviction or sentence to the Eighth Circuit Court of
Appeals was taken by Petitioner. This motion for post-conviction relief pursuant to
28 U.S.C. § 2255 was filed on July 28, 2014.
There is but a single claim for relief raised by Petitioner. He asserts that this
Court’s reliance upon his prior Missouri Burglary Second Degree conviction in
order to classify him as an Armed Career Criminal violates the principles and
requirements set out in Descamps v. United States, 133 S.Ct. 2276 (2013).
The Supreme Court held, in Descamps, that a conviction for burglary in
violation of California Penal Code § 459 is broader than generic burglary and
therefore does not qualify as “burglary” under the enumerated-offenses clause of
the Armed Career Criminal Act’s “violent felony” definition, 18 U.S.C. §
924(e)(2)(B)(ii). The Court further held that the modified categorical approach
adopted in Taylor v. United States, 495 U.S. 575 (1990), and refined in Shepard v.
United States, 544 U.S. 13 (2005), may not be applied to an indivisible statute such
as Section 459. As a result, where a statute, like Section 459, does not define a
crime with alternative elements, the qualifying nature of the crime must be
assessed categorically, looking only to its elements. Descamps, 244 S.Ct. at 2285.
The Eighth Circuit Court of Appeals has had the opportunity to determine
whether Missouri’s second degree burglary statute is affected by Descamps. In
United States v. Olsson, 742 F.3d 855 (8th Cir. 2014), the Eighth Circuit the Eighth
Circuit concluded that it is not and stated:
[Defendant] was convicted under the Missouri second-degree burglary
statute, which served as a basis for his sentencing enhancement: “A person
commits the crime of burglary in the second degree when he knowingly enters
unlawfully or knowingly remains unlawfully in a building or inhabitable structure
for the purpose of committing a crime therein.” Mo.Rev.Stat. § 569.170. The basic
elements of the generic burglary offense are “unlawful or unprivileged entry into,
or remaining in, a building or structure, with intent to commit a crime.” Taylor v.
United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed. 2d 607 (1990).
Because the basic elements of the Missouri second-degree burglary statute are the
same as those of the generic burglary offense, [defendant’s] prior conviction
qualifies as a “crime of violence” under the categorical approach.
Olsson, 742 F.3d at 856.
Petitioner’s second-degree burglary conviction clearly qualifies as a
violent felony and is unaffected by the analysis in Descamps. As such, Petitioner’s
claim is denied.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
IT IS HEREBY ORDERED that this action is DENIED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
An Order of Dismissal will be filed separately.
Dated this 9th day of February, 2015.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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