Rollins v. USA
MEMORANDUM: The Court concludes that the motions to vacate and the files and records of this case conclusively show that Rollins is not entitled to relief under 28 U.S.C. § 2255. Therefore, the motion and amended motions will be denied witho ut a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the Court finds that Rollins has not made a substantial showing of the denial of a constitutional right. Therefore, the Court will not issue a certificate of appealability. See 28 U.S.C. 2253. An Order consistent with this Memorandum will be filed separately. Signed by District Judge Carol E. Jackson on 6/20/2017. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
STEVEN RUSSELL ROLLINS,
UNITED STATES OF AMERICA,
) No. 4:16-CV-598 (CEJ)
This matter is before the Court on the motion and amended motions of Steven
Russell Rollins to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. '
2255. The United States has filed a response in opposition.
Rollins pleaded guilty to possessing a firearm as a convicted felon, in violation
of 18 U.S.C. § 922(g)(1). At sentencing, the Court found that Rollins had two prior
felony convictions for burglary second degree of a building and one prior felony
conviction for burglary second degree of a dwelling house. He also had two felony
convictions burglary second degree of an inhabitable structure. The Court found that
Rollins was an armed career criminal and sentenced him pursuant to 18 U.S.C. §
924(e) to a 180-month term of imprisonment.
In his motions, Rollins asserts that he can no longer be deemed an armed
career criminal because his prior convictions for burglary second degree of an
inhabitable structure no longer qualify as violent felonies under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e).
Thus, he argues, he does not have the
requisite number of predicate felony convictions to justify the enhanced sentence
under the ACCA.
In Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569
(2015), the Supreme Court held that the “residual clause” of the ACCA, 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague.
The ACCA enhances the punishment
for firearms offenses under 18 U.S.C. § 922(g) when the defendant has at least
three prior convictions for a serious drug offense or a “violent felony.”
“violent felony” is defined in the ACCA as felony offense that “(1) 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, involves the use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added).
The “otherwise involves”
language of the ACCA is the residual clause that the Supreme Court found
unconstitutional. Johnson, 135 S.Ct. at 2563. Further, the Court made clear that its
decision did not implicate the enumerated offenses of burglary, arson, extortion, and
use of explosives. Id. (“Today’s decision does not call into question application of
the Act to the four enumerated offenses, or the remainder of the Act’s definition of a
The following year, in Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243,
195 L.Ed.2d 604 (2016), the Court addressed the issue of determining whether a
defendant’s prior conviction qualifies as one of the enumerated offenses under the
The Court ruled that a prior conviction does not qualify as the generic form of
an enumerated offense when the elements of the statute on which the prior
conviction is based are broader than the elements of the generic form of the offense.
Mathis, 136 S.Ct. at 2257.
Thus, the Court held that Mathis’s Iowa burglary
conviction was not a predicate offense under the ACCA, because the elements of the
state’s burglary statute were broader than the elements of the enumerated offense of
generic burglary. Id.
The government concedes that, in light of Mathis, Rollins’s convictions for
burglary second degree of an inhabitable structure can no longer be deemed
predicate offenses for purposes of the ACCA. However, the government argues that
Rollins’s convictions for burglary second degree of a dwelling house and of a building
remain violent felonies. In the wake of the Johnson and Mathis decisions, the Eighth
Circuit has addressed whether the Missouri offense of burglary second degree of a
building qualifies as a violent felony for purposes of the ACCA.
In United States v Sykes, 844 F.3d 712 (8th Cir. 2016), the court of appeals
determined that the Missouri statute “contains at least two alternative elements:
burglary ‘of a building’ and burglary of ‘an inhabitable structure,’ separated in the
text by the disjunctive ‘or’.” Id. at 715 [quoting Mo. Rev. Stat. § 569.170]. Because
the statute listed the elements in the alternative, the court applied the modified
categorical approach approved in Mathis and determined that Sykes’ prior conviction
was for burglary of a building. Id. [citing Mathis, 136 S. Ct. at 2249 (when elements
of offense are listed in the alternative, courts may look to documents, such as
indictment, plea agreement, or jury instructions “to determine what crime, with what
elements, a defendant was convicted of.”)].
The court determined that second-
degree burglary of a building is an offense that “conforms to the elements of a
generic burglary as promulgated in Taylor [v. United States, 495 U.S. 602 (1990)]:
(i) unlawful entry or remaining in (ii) a building or structure (iii) with the intent to
commit a crime.” Id. [citing Taylor, 495 U.S. at 598]. The court further ruled that
“because burglary of ‘a building’ describes an element of second-degree burglary
rather than a means, our decision does not run afoul of Mathis.” Id. Thus, the court
held that the Missouri offense of burglary second degree of a building constitutes a
violent felony under the ACCA. Id. at 716. The Eighth Circuit reaffirmed this holding
in United States v. Naylor, 2017 WL 1163645 at *1 (8th Cir. 2017).
In the instant case, Rollins’s three convictions for second degree burglary of a
dwelling house and of a building clearly qualify as generic burglary—an enumerated
offense in the ACCA. The residual clause invalidated by Johnson is inapplicable and
Rollins is not entitled to relief based on Mathis.
The Court concludes that the motions to vacate and the files and records of
this case conclusively show that Rollins is not entitled to relief under 28 U.S.C. §
Therefore, the motion and amended motions will be denied without a
hearing. See Engelen v. United States, 68 F.3d
238, 240 (8th Cir. 1995).
Additionally, the Court finds that Rollins has not made a substantial showing of the
denial of a constitutional right. Therefore, the Court will not issue a certificate of
appealability. See 28 U.S.C. 2253.
An Order consistent with this Memorandum will be filed separately.
Dated this 20th day of June, 2017.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
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