Walker v. USA
Filing
45
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Darrell D Walker, but granting a certificate of appealability. Signed on 6/17/2019 by District Judge Roseann Ketchmark. (Martin, Elizabeth)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DARRELL D WALKER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 4:16-cv-00703-RK
Case No. 4:02-cr-00161-RK
ORDER
Darrell Walker’s (“Walker”) successive motion to vacate his sentence pursuant to
28 U.S.C. § 2255 is before this Court following remand. (Doc. 1; Crim. Doc. 202.)1 Because
Walker has not met his burden, the Motion is DENIED, but Walker is GRANTED a certificate
of appealability.
Background
In December 2004, Walker was convicted by a jury on two counts of being a felon in
possession of a firearm and one count of being a felon in possession of ammunition, all in violation
of 18 U.S.C. § 922(g). In August 2005, the sentencing court found Walker qualified as an armed
career criminal under the ACCA and rendered an enhanced sentence of 293 months’ imprisonment
on each count, concurrently, to be followed by a five-year term of supervised release. The
Presentence Investigation Report (“PSR”) showed Walker had four prior convictions that
potentially qualified him for the sentencing enhancement: two convictions for Missouri seconddegree burglary of an inhabitable structure, a conviction for Missouri first-degree burglary, and a
conviction for the sale of a controlled substance. (Doc. 162 at ¶¶ 58, 59, 61, and 62.) Walker
argues that he no longer qualifies for the sentencing enhancement because the ACCA requires
three predicate convictions and, based on Johnson, his two prior convictions for Missouri seconddegree burglary of an inhabitable structure no longer count.
The successive motion is back before the Court following remand from the Eighth Circuit
with directions to “determine in the first instance whether Walker has shown by a preponderance
1
“Doc.” refers to the docket number entries in Mitchell’s civil case. “Crim Doc.” refers to the
docket number entries in Mitchell’s criminal case.
of the evidence that his successive § 2255 claim relies on Johnson’s new rule invalidating the
[ACCA’s] residual clause. The district court should proceed to the merits only if Walker is able
to carry his burden.” Walker v. United States, 900 F.3d 1012, 1015 (8th Cir. 2018). Determining
whether Walker has carried is burden is a two-step process. The Court held a hearing on May 20,
2019, and the parties have filed post-hearing briefs. (Docs. 41, 42.)
Synopsis
I. Step One: The sentencing record is inconclusive as to which clause, or clauses, the sentencing
court used for the sentencing enhancement.
II. Step Two: The legal background in August 2005 shows it is just as likely that the sentencing
court used the enumerated offenses clause under as an alternative basis to the residual clause
for the sentencing enhancement.
A. Enumerated Offenses Clause: The legal background in August of 2005 allowed the
sentencing court to utilize the enumerated offenses clause under Taylor (1990) for the
sentencing enhancement. Based on the following five legal principles set forth in Taylor,
the Court finds that the language in the Missouri second-degree statute’s definition of
inhabitable structure modifying the class of vehicles and structures to places in which
people are located or are customarily located falls within the scope of generic burglary’s
definition.
1. Congress singled out burglary because of its inherent potential harm to persons.
2. ACCA burglary includes places other than dwellings, but it does not include all
automobiles.
3. ACCA burglary is not limited to a special subclass of especially dangerous burglaries.
4. ACCA burglary is generic in the sense in which criminal codes of most States defined
burglary in 1986.
5. ACCA burglary approximates the Model Penal Code’s contemporaneous definition of
burglary.
B. Residual Clause: The legal background in August of 2005 allowed the sentencing court
to utilize the residual clause under Hascall (1996) and its progeny as a basis for
sentencing enhancement involving Missouri second-degree burglary convictions.
C. Alternate Basis: Because the legal background shows it is just as likely that the
sentencing court used the enumerated offenses clause as an alternative to the residual
clause, Walker has not met his burden to show that his claim relies on Johnson.
2
D. Cases which are Distinguishable
1. The Eastern District of Missouri’s decision in Caldwell does not consider whether the
enumerated offenses clause was available to the sentencing court as an alternative basis.
2. The Western District of Missouri’s decision in Evans found the sentencing record in
Step One to conclusively rely on the residual clause, and therefore did not proceed to
Step Two.
3. The Western District of Missouri’s decision in Smith granted relief based on the
Government’s misplaced concession and reliance on Mathis.
Discussion
Section 922(g) offenses generally carry a maximum punishment of 10 years in prison.
18 U.S.C. §§ 922(g), 924(a)(2). The ACCA, however, imposes a mandatory 15-year minimum
prison term for an offender who has three prior convictions “for a violent felony or a serious drug
offense[.]” § 924(e)(1). A prior felony conviction qualifies as a “violent felony” if it:
(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, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another[.]
§ 924(e)(2)(B) (emphasis added). Subsection (i) of this provision is known as the “force” clause;
the phrase “burglary, arson, or extortion, involves use of explosives” is known as the “enumerated
offenses” clause; and the closing phrase “otherwise involves conduct that presents a serious
potential risk of physical injury to another” is known as the “residual” clause. Johnson v. United
States, 135 S. Ct. 2551, 2555-58 (2015). The Supreme Court in Johnson struck down the residual
clause as unconstitutionally vague. Id. at 2557, 2563 (2015). Johnson announced a “substantive
rule” that is retroactive to cases on collateral review. Welch v. United States, 136 S. Ct. 1257,
1268 (2016).
Walker must show that his Section 2255 claim “relies on” Johnson’s new rule invaliding
the ACCA’s residual clause. Walker, 900 F.3d at 1014. Specifically, Walker must “show by a
preponderance of the evidence that the residual clause led the sentencing court to apply the ACCA
[sentencing] enhancement.” Id. at 1015. This analysis has two steps. The Court first determines
whether the sentencing record indicates which clause the sentencing court used to count Walker’s
Missouri second-degree burglary convictions as violent felonies. See Golinveaux v. United States,
3
915 F.3d 564, 568 (8th Cir. 2019). If the sentencing record is inconclusive, the Court then
determines what the relevant legal background was at the time of sentencing. Id. Under this legal
environment test, “[i]n some cases, the legal background at the time of sentencing will establish
that the [enhanced sentence] was necessarily based on the residual clause.” Walker, 900 F.3d at
1015. “By contrast, ‘[i]f it is just as likely that the sentencing court relied on the . . . enumerated
offenses clause, solely or as an alternative basis for the [enhanced sentence], then the movant has
failed to show that his [enhanced sentence] was due to use of the residual clause.’” Walker, 900
F.3d at 1015 (citation omitted).
I. Step One: The sentencing record is inconclusive as to which clause the sentencing court
used for the sentencing enhancement.
The Court finds the sentencing record is inconclusive. It is important to note that Walker
was sentenced by a different judge, and this case has since been reassigned to the undersigned.
The Court has reviewed the complete record, including, but not limited to, the following
documents in this case: transcripts of the jury trial (Crim. Docs. 158, 159), transcript of the
sentencing hearing (Crim. Doc. 161), sentencing memorandum (Crim. Doc. 152), Presentence
Investigation Report (“PSR”) (Crim. Doc. 162), and Walker’s initial § 2255 motion (Crim. Doc.
171). The Court does not find a historical fact that indicates which clause was the basis of the
sentencing enhancement In particular, neither the sentencing court nor the PSR specified which
clause of the ACCA supported the sentencing enhancement. At oral argument, Walker’s counsel
conceded that the sentencing court did not specify which clause of the ACCA supported the
sentencing enhancement, and counsel for the Government did not speak to this issue.2 (E.g., Doc.
43 at 10, 14.) The Court concludes that the sentencing record is inconclusive as to which clause
the sentencing court relied on in finding Walker’s convictions for Missouri second-degree burglary
of an inhabitable structure are predicate offenses under the ACCA.
2
At the hearing, Walker’s counsel focused on the objection lodged by Walker’s counsel at
sentencing based on Shepard v. United States, 544 U.S. 13 (2005), regarding the sentencing court’s ability
to look beyond pleadings and other court documents in determining whether Walker’s prior convictions
were predicate offenses under the ACCA. (Doc. 152 at 3.) Walker contends that this objection informed
the sentencing court that it could not consider information in the PSR indicating that Walker’s prior burglary
convictions involved a dwelling or residence. The Court agrees that it cannot consider the information in
the PSR describing Walker’s prior burglary convictions as involving a dwelling or residence. However,
this still leaves the question of which clause the sentencing court relied on in classifying Walker’s Missouri
second-degree convictions of an inhabitable structure as violent felonies.
4
II. Step Two: The legal background in August 2005 shows it is just as likely that the
sentencing court used the enumerated offenses clause as an alternative basis to the
residual clause for the sentencing enhancement.
A. Enumerated Offenses Clause: The legal background in August of 2005 allowed the
sentencing court to utilize the enumerated offenses clause under Taylor (1990) for the
sentencing enhancement. Based on the following five legal principles set forth in
Taylor, the Court finds that the language in the Missouri second-degree statute’s
definition of inhabitable structure modifying the class of vehicles and structures to
places in which people are located or are customarily located falls within the scope of
generic burglary’s definition.
“[T]he relevant background legal environment is . . . a ‘snapshot’ of what the controlling
law was at the time of sentencing[.]” Walker, 900 F.3d at 1015 (citing United States v. Snyder,
871 F.3d 1122, 1129 (10th Cir. 2017)). At the time of sentencing in August 2005, the Supreme
Court had construed “burglary” in the enumerated offenses clause to mean “generic burglary.”3
Taylor v. United States, 495 U.S. 575, 577, 598 (1990). The Taylor Court defined generic burglary
for the purposes of the enumerated offenses clause as “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime.” Id. at 598. The Taylor
Court had also held that in deciding whether a prior conviction counts as generic burglary, a
sentencing court should generally apply the categorical approach, looking only to the fact of
conviction and the statutory definition of the prior offense. Id. at 600. However, when the statute
of conviction is broader than generic burglary, a sentencing court should apply the modified
categorical approach, looking to a limited set of documents to determine the elements underlying
the defendant’s conviction. Id. at 602 (recognizing an exception to the categorical approach); see
Descamps v. United States, 570 U.S. 254, 261 (2013) (Taylor’s exception to the categorical
approach later dubbed the modified categorical approach). A prior offense counts as ACCA
burglary under the enumerated offenses clause if either under the categorical approach, its statutory
definition substantially corresponds to, or is narrower than, the elements of generic burglary, or,
under the modified categorical approach, the limited set of documents show the conviction actually
involved findings of the elements of generic burglary. Id.; Mathis v. United States, 136 S. Ct.
2243, 2247 (2016).
3
For purposes of this Order, the Court uses the term “generic burglary” interchangeably with “ACCA
burglary.”
5
Here, the Missouri second-degree burglary statute defines burglary as “when [a person]
knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable
structure for the purpose of committing a crime therein.” Mo. Rev. Stat. § 569.170.1.4 The statute
defines “inhabitable structure” to include:
a ship, trailer, sleeping car, airplane, or other vehicle or structure:
(a) [w]here any person lives or carries on business or other calling; or
(b) [w]here people assemble for purposes of business, government, education,
religion, entertainment or public transportation; or
(c) [w]hich is used for overnight accommodation of persons. Any such vehicle or
structure is ‘inhabitable’ regardless of whether a person is actually present[.]
Id. § 569.010(2). The chart below shows a side-by-side comparison of the elements of Missouri
second-degree burglary and the elements of generic burglary:
Elements of Missouri second-degree burglary
Elements of generic burglary
A person knowingly enters unlawfully or an unlawful or unprivileged entry into, or
knowingly remains unlawfully in
remaining in
a building or inhabitable structure
a building or other structure
for the purpose of committing a crime therein
with intent to commit a crime
The elements of the Missouri second-degree burglary as written in the language of the statute seem
to “substantially correspond” or match the elements of generic burglary. The question is whether
the statutory term “inhabitable structure” takes the Missouri second-degree statute outside the
scope of generic burglary. In other words, does the statutory definition of “inhabitable structure”
cover a broader range of places than “a building or structure” in generic burglary. See Taylor, 495
U.S. at 601. Based on the following five legal principles set forth in Taylor, the Court finds that
the language in the Missouri second-degree statute’s definition of inhabitable structure modifying
the class of vehicles and structures to places in which people are located or are customarily located
4
Unless noted otherwise, all references to the Missouri second-degree burglary statute for purposes
of this Order are to the 1979 version.
6
falls within the scope of generic burglary’s definition as set forth in Taylor.5 See Endnote 1
(discussing Mathis v. United States, 136 S. Ct. 2243 (2016) and its impact on ACCA
jurisprudence).
1. Congress singled out burglary because of its inherent potential harm to persons.
As the Supreme Court recognized in Taylor, “[t]he legislative history [of the ACCA]
indicates that Congress singled out burglary (as opposed to other frequently committed property
crimes such as larceny and auto theft) for inclusion as a predicate offense . . . because of its inherent
potential for harm to persons.” Taylor, 495 U.S. at 588; see also Quarles v. United States, No. 17778, 2019 U.S. LEXIS 4027, at *12 (June 10, 2019); United States v. Stitt, 139 S. Ct. 399, 406
(2018); Faulkner v. United States, No. 18-1984, 2019 U.S. App. LEXIS 17132, at *7 (8th Cir.
June 7, 2019). The Taylor Court explained that burglary “creates the possibility of a violent
confrontation between the offender and an occupant, caretaker, or some other person who comes
to investigate.” Id.; see also Quarles, 2019 U.S. LEXIS 4027, at *13; Stitt, 139 S. Ct. at 406;
Faulkner, 2019 U.S. App. LEXIS 17132, at *7. A burglar’s “own awareness of this possibility
may mean that he is prepared to use violence if necessary to carry out his plans or to escape.” Id.
Burglary of an inhabitable structure as defined in the Missouri second-degree statute
presents a similar or greater risk of violent confrontation of a building or house. The Missouri
statute’s inclusion of a broad class of vehicles and structures—“a ship, trailer, sleeping car,
airplane, or other vehicle or structure”—does not stand alone, but rather, the statute has additional
modifying language that restricts the statute’s coverage to where people live, do business,
assemble, or stay overnight. Mo. Rev. Stat. § 569.010(2)(a)-(c). This modifying language in the
statute’s definition of inhabitable structure focuses on places in which people are located or are
customarily located. A burglar entering places in which people are located or are customarily
located is likely on notice that people are either inside, or that someone will likely be alerted to
come investigate. For example, when a burglar breaks into a houseboat, camper, an RV, a vehicle
or another structure where people live, do business, or assemble, or stay overnight, the burglar is
likely to confront “an occupant, caretaker, or some other person who comes to investigate.” See
5
Because the Court finds that Missouri second-degree burglary is not broader than generic
burglary, the categorical approach applies. The modified categorical approach and the corresponding issue
of whether the statute is divisible, i.e., contains alternative elements as opposed to alternative means, is
inapplicable. See Mathis, 136 S. Ct. at 2249; Descamps v. United States, 570 U.S. 254, 261-62 (2013)
(citing Taylor, 495 U.S. at 602).
7
Stitt, 139 S. Ct. at 406; United States v. Spring, 80 F.3d 1450, 1462 (10th Cir. 1996). The burglary
of such vehicles or structures is often likely to pose a greater risk of violence to the occupant,
caretaker, or investigator than the burglary of a building or house because it is more difficult for
the burglar to enter or escape unnoticed. See Spring, 80 F.3d at 1462.
To interpret generic burglary to exclude burglary of a structure or vehicle in which people
are located or are customarily located would mean burglaries often posing a greater risk than
burglary of a building or house would be eliminated as predicate offenses because they are broader
than generic burglary. This result makes little sense considering that Congress’ intent in singling
out burglary was “because of its inherent potential for harm to persons.” Taylor, 495 U.S. at 588.
2. ACCA burglary includes places other than dwellings, but it does not include all
automobiles.
The Supreme Court in Taylor explained, after examining the ACCA’s legislative history
and purpose, that Congress intended a generic definition of burglary which includes places other
than dwellings. Taylor, 495 U.S. at 580-92; Stitt, 139 S. Ct. at 405. The Taylor Court held that
generic burglary includes “at least the ‘classic’ common-law definition” which is “a breaking and
entering of a dwelling at night, with intent to commit a felony[.]” Taylor, 495 U.S. at 593. In
doing so, the Taylor Court said the common-law definition, in part by excluding all places other
than dwellings, did not align with the purposes of the ACCA and has “little relevance to modern
law enforcement concerns.” Id. Indeed, by the time the ACCA was passed in 1986, most States
had expanded their definition of burglary to include “structures other than dwellings.” Id. Taylor
noted that some States define burglary more broadly than its generic definition, for example,
statutes that include “places, such as automobiles and vending machines.” Id. at 599. However,
the Supreme Court did not limit generic burglary to structures only akin to buildings. See Stitt,
139 S. Ct. at 404; Faulkner, 2019 U.S. App. LEXIS 17132 at *6.
Missouri’s definition of inhabitable structure includes vehicles and structures other than
buildings, which at first glance makes it appear that the statute is broader than generic burglary.
However, inhabitable structure as defined in the statute includes additional modifying language
which makes it clear that the statute does not include any and all automobiles, vehicles or other
structures. Only vehicles and structures where people live, do business, assemble, or stay
overnight meet the definition of an inhabitable structure. The additional modifying language in
8
Missouri’s definition of inhabitable structure means that the statute does not include vehicles and
structures in the sense in which Taylor excludes them. See Spring, 80 F.3d at 1462.
3. ACCA burglary is not limited to a special subclass of especially dangerous
burglaries.
The Supreme Court in Taylor, after reviewing the text and history of the ACCA, rejected
the argument that Congress intended only to include an especially dangerous subclass of
burglaries. Taylor, 495 U.S. at 597. Had this been Congress’ intent, the Supreme Court reasoned,
it is unlikely that it would have included the since-invalidated residual clause (“or otherwise
involves conduct that presents a serious potential risk”). Id.; Stitt, 139 S. Ct. at 405; Faulkner,
2019 U.S. App. LEXIS 17132, at *7. Instead, “Congress presumably realized that the word
‘burglary’ is commonly understood to include not only aggravated burglaries, but also run-of-themill burglaries[.]” Id. The Taylor Court reasoned “[t]his choice of language indicates that
Congress thought ordinary burglaries, as well as burglaries involving some element making them
especially dangerous, presented a sufficiently ‘serious potential risk’ to count toward
enhancement.” Id. From its review of the legislative history, the Supreme Court explained:
Congress apparently thought that all burglaries serious enough to be punishable by
imprisonment for more than a year constituted a category of crimes that shared this
potential for violence and that were likely to be committed by career criminals.
There never was any proposal to limit the predicate offense to some special subclass
of burglaries that might be especially dangerous, such as those where the offender
is armed, or the building is occupied, or the crime occurs at night.
Id. at 588.
Again, Missouri’s definition of inhabitable structure focuses on places in which people are
located or are customarily located. Given the modifying language in the statute’s definition of
inhabitable structure, the burglary of vehicles and structures meeting this definition is often likely
to pose a risk of violence to another person who may be present, or who may come to investigate.
The burglary of such vehicles or structures is often likely to pose a greater risk of violence to the
occupant, caretaker, or investigator than the burglary of a building or house because it is more
difficult for the burglar to enter or escape unnoticed. See Stitt, 139 S. Ct. at 406; Spring, 80 F.3d
at 1462. To interpret generic burglary to exclude burglary of a structure or vehicle in which people
are located or are customarily located would mean burglaries often posing a greater risk than
burglary of a building or house would be eliminated as predicate offenses because they are broader
9
than generic burglary. This result makes little sense considering that Congress intended to include
“not only aggravated burglaries, but also run-of-the-mill burglaries.” Taylor, 495 U.S. at 597.
4. ACCA burglary is generic in the sense in which criminal codes of most States
defined burglary in 1986.
The Supreme Court made clear in Taylor that Congress intended the definition of generic
burglary to reflect the term burglary as it was used in the criminal codes of most States at the time
the ACCA was passed. Taylor, 495 U.S. at 598; Stitt, 139 S. Ct. at 406. For this reason, Taylor
did not limit the definition of generic burglary to the narrow common-law definition which only
covered dwellings. Id. at 593. Instead, Taylor defined generic burglary more broadly to include
“a building or other structure” which was consistent with how burglary was used in the criminal
codes of most States at the time of the ACCA’s enactment. Id. at 598.
At the time the ACCA was enacted in 1986, a majority of state burglary statutes covered
occupiable structures where people live, do business, assemble, or stay overnight. Stitt, 139 S. Ct.
at 406 (in 1986, the majority of state burglary statutes covered vehicles adapted or customarily
used for overnight lodging or a broader class of vehicles); see, e.g., Alaska Stat. §§ 11.46.300,
11.46.310, 11.81.900(b)(3) (1989) (effective 1978) (involving a “building” which, “in addition to
its usual meaning, includes any propelled vehicle or structure adapted for overnight
accommodation of persons or for carrying on business.”); Ark. Stat. Ann. §§ 41-2001(1), 41-2002
(1977) (involving an “occupiable structure” which is defined as a “vehicle, building, or other
structure: (a) where any person lives or carries on a business or other calling; or (b) where people
assemble for purposes of business, government, education, religion, entertainment, or public
transportation; or (c) which is customarily used for overnight accommodation of persons; whether
or not a person is actually present.”); N. H. Rev. Stat. Ann. § 635:1 (1974) (involving an “occupied
structure” which includes any “structure, vehicle, boat or place adapted for overnight
accommodation of persons, or for carrying on business therein[.]”); Ky. Rev. Stat. Ann. §
511.010(1) (1980) (involving a “building” which “in addition to its ordinary meaning, means any
structure, vehicle, watercraft or aircraft: (a) where any person lives; or (b) where people assemble
for purposes of business, government, education, religion, entertainment or public
transportation.”); Wyo. Stat. Ann. §§ 6-3-401(a)(v), 6-3-301 (1977) (Cum. Supp. 1985) (involving
an “occupied structure” defined to mean a structure or vehicle whether or not a person is actually
present: “(A) Where any person lives or carries on business or other calling; (B) Where people
10
assemble for purposes of business, government, education, religion, entertainment or public
transportation; (C) Which is used for overnight accommodation of persons; or (D) In which a
person may reasonably be expected to be present.”); and Appendix, infra (collecting burglary
statutes covering occupiable structures where people live, do business, assemble, or stay overnight,
or a broader class of occupiable places).
To interpret generic burglary to exclude burglary of structures and vehicles in which people
live, do business, assemble, or stay overnight, would not only eliminate as predicate offenses
burglaries which present a similar or greater risk of violent confrontation than burglaries of a
building or house, but would also eliminate as predicate offenses many States’ burglary statutes.
See Quarles, 2019 U.S. LEXIS 4027, at *13-14.
5. ACCA burglary approximates the Model Penal Code’s contemporaneous
definition of burglary.
The Supreme Court in Taylor noted that generic burglary approximates the definition of
burglary in the Model Penal Code at the time the ACCA was passed. Taylor, 495 U.S. at 598 n.8.
The Model Penal Code’s contemporaneous definition of burglary includes “a building or occupied
structure, or separately secured or occupied portion thereof[.]” ALI, Model Penal Code § 221.1
(1980); Faulkner, 2019 U.S. App. LEXIS 17132, at *6. The Model Penal Code defined “occupied
structure” for purposes of burglary as including “any structure, vehicle or place adapted for
overnight accommodation of persons, or for carrying on business therein, whether or not a person
is actually present.” ALI, Model Penal Code §§ 220.0(1), 221.1(1) (1980); Stitt, 139 S. Ct. at 406.
In the Comments, the Model Penal Code provides that burglary should cover places with the
“apparent potential for regular occupancy.” ALI, Model Penal Code § 221.1, Comment 3(b), p.72;
Stitt, 139 S. Ct. at 406.
Missouri second-degree burglary of an inhabitable structure approximates or substantially
corresponds with the definition of burglary in the Model Penal Code at the time the ACCA was
passed. Like the Model Penal Code’s definition of “occupied structure,” the Missouri statute’s
definition of inhabitable structure limits coverage of vehicles or structures to where people live,
do business, assemble, or stay overnight. In addition, consist with the Comments of the Model
Penal Code, inhabitable structure as defined in the Missouri statute is restricted to structures and
vehicles where people live, do business, assemble or stay overnight, which are all places with the
“apparent potential for regular occupancy.”
11
In summary, when comparing the elements, the Missouri second-degree burglary statute
substantially corresponds with generic burglary, and the statutory definition of “inhabitable
structure” in Missouri second-degree burglary does not cover a broader range of places than “a
building or other structure” in generic burglary. The Missouri statute defines inhabitable structure
to covers places other than dwellings, such as vehicles and structures, but the statute’s additional
modifying language restricts burglary’s coverage to places in which people are located or are
customarily located. The burglary of such vehicles or structures is often likely to pose a greater
risk of violence to the occupant, caretaker, or investigator than the burglary of a building or house
because it is more difficult for the burglar to enter or escape unnoticed. If generic burglary is
interpreted to exclude burglary of a structure and vehicles which are customarily occupied or
looked after, then many States’ burglary statutes as well as the contemporaneous Model Penal
Code definition of burglary would be broader than generic burglary and would be eliminated as
predicate offenses. That result makes little sense given that the Taylor Court interpreted ACCA
burglary in light of: “the ordinary understanding of burglary as of 1986; the States’ laws at that
time; Congress’ recognition of the dangers of burglary; and Congress’ stated objective of imposing
increased punishment on armed career criminals who had committed prior burglaries.” See
Quarles, 2019 U.S. LEXIS 4027, at *13-14.
Because the statutory definition of inhabitable structure does not take the Missouri seconddegree statute outside the scope of Taylor’s generic burglary, the legal background in August of
2005 allowed the sentencing court to utilize the enumerated offenses clause as a basis for counting
Walker’s Missouri second-degree burglary convictions as violent felonies.
B. Residual Clause: The legal background in August of 2005 allowed the sentencing
court to utilize the residual clause under Hascall (1996) and its progeny as a basis
for sentencing enhancement involving Missouri second-degree burglary convictions.
The legal background in August of 2005 allowed the sentencing court to utilize the residual
clause under Hascall and its progeny as a basis to classify Walker’s convictions for Missouri
second-degree burglary of an inhabitable structure as violent felonies under the ACCA. See United
States v. Nolan, 397 F.3d 665, 666 (8th Cir. 2005) (“We have consistently held that burglary is a
predicate offense under § 924(e) and the Sentencing Guidelines (“USSG.”) § 4B1.2.”); United
States v. Mohr, 382 F.3d 857, 860-61 (8th Cir. 2004) (burglary of commercial building is
categorically a crime of violence under residual clause of USSG.); United States v. Blahowski, 324
F.3d 592, 594-95 (8th Cir. 2003) (same); United States v. Hascall, 76 F.3d 902, 904 (8th Cir. 1996)
12
(same); see also Blahowski, 324 F.3d at 594-95 (identically worded clauses in the USSG and the
residual clause of the ACCA given same meaning).
C. Alternate Basis: Because the legal background shows it is just as likely that the
sentencing court used the enumerated offenses clause as an alternative to the
residual clause, Walker has not met his burden to show that his claim relies on
Johnson.
The legal background shows it is just as likely that the sentencing court used the
enumerated offenses clause as an alternative basis to the residual clause in classifying Walker’s
convictions for Missouri second-degree burglary of inhabitable structure are violent felonies under
the ACCA. The fact that the residual clause was available does not change the fact that under
Taylor, the enumerated offenses clause was also available, at least as an alternative basis. “[I]t is
not enough for Walker to show that the background legal environment at the time of [his]
sentencing reveals the residual clause offered the path of least analytical resistance.” Walker, 900
F.3d at 1015. (internal quotation marks omitted). Walker has not met his burden to “show by a
preponderance of the evidence that the residual clause led the sentencing court to apply the ACCA
enhancement” and, therefore, has not shown that his claim relies on Johnson’s new rule. Walker,
900 F.3d at 1015.
D. Cases which are Distinguishable
1. The Eastern District of Missouri’s decision in Caldwell does not consider whether
the enumerated offenses clause was available to the sentencing court as an
alternative basis.
Walker maintains that Caldwell, a case decided by a district court in the Eastern District of
Missouri, demonstrates why he has met his burden in this case. 2019 WL 670316 (E.D. Mo. Feb.
19, 2019). In Caldwell, the district court considered identical convictions for Missouri seconddegree burglary and found that “the relevant background legal environment at the time of
sentencing establishes [the movant] was sentenced under the residual clause invalidated by
Johnson.” Id. at *12-13. Caldwell, however, did not consider whether the enumerated offenses
clause was available to the sentencing court as an alternative basis.
2. The Western District of Missouri’s decision in Evans found the sentencing record
in Step One to conclusively rely on the residual clause, and therefore did not
proceed to Step Two.
In Walker’s post-hearing brief, he cites to two additional district court decisions and argues
that “a trend in the law has emerged, with district courts granting successive § 2255 motions based
13
on this indistinguishable issue of Missouri burglary.” (Doc. 42 at 1.) Although these decisions
did address identical convictions for Missouri second-degree burglary of an inhabitable structure,
the Court disagrees with counsel that the decisions are indistinguishable. Evans, unlike here, is
not a silent record case. The district court in Evans found that the movant had met its burden based
on indications in the sentencing record that the sentencing court had relied on the residual clause
in finding the prior conviction for Missouri second-degree burglary of an inhabitable structure was
a violent felony. No. 16-cv-03281-FJG (W.D. Mo. May 23, 2019) (Doc. 53 at 7) (“In this case,
the Court agrees with Evans’ counsel and finds that the sentencing record is not silent.”).
3. The Western District of Missouri’s decision in Smith granted relief based on the
Government’s misplaced concession and reliance on Mathis.
In Smith, a decision that predates Walker, 900 F.3d 1012, the Government conceded that it
could not demonstrate that one of Smith’s second-degree burglary convictions qualifies as a
predicate offense. 16-cv-05064-DGK (W.D. Mo. Feb. 2, 2018) (Doc. 13 at 4). The Government
explained that it interpreted the law at that time (June 12, 2017), including Mathis, Sykes, and
Phillips, to be “that a Missouri conviction for second-degree burglary qualifies as a ‘violent felony’
. . . only if it is expressly charged as a burglary of a building (as opposed to an ‘inhabitable
structure’)[.]” 16-cv-05064-DGK, Supp. Resp. at 5-6, and n.3 (Doc. 11). For the reasons
explained above in Section II.A., the Government’s concession and reliance on Mathis was
misplaced. See also Endnote 1, infra.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court may issue a certificate of appealability only where
a petitioner “has made a substantial showing of the denial of a constitutional right.” This requires
showing that “reasonable jurists” could find the Court’s decision to be “debatable or wrong.”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quotation marks and citations omitted). At least one
judge in this district addressing identical prior convictions for Missouri second-degree burglary
has concluded that the legal environment in 2005 established that the residual clause led the
sentencing court to apply the ACCA enhancement. Caldwell v. United States, 2019 WL 670316
(E.D. Mo. Feb. 19, 2019). Therefore, the Court grants Movant a certificate of appealability.
14
Conclusion
Accordingly, Darrell Walker’s successive motion to vacate his sentence pursuant to
28 U.S.C. § 2255 is DENIED, but Walker is GRANTED a certificate appealability.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: June 17, 2019
15
Endnote 1
“[T]he relevant background legal environment is . . . a ‘snapshot’ of what the controlling
law was at the time of sentencing and does not take into account post-sentencing decisions that
may have clarified or corrected pre-sentencing decisions. Snyder, 871 F.3d at 1129. However,
the Court notes that since Walker’s sentencing in August 2005, the legal environment as to whether
Missouri second-degree burglary counts as ACCA burglary has been in flux. The Supreme Court’s
decision in Mathis impacted how the Eighth Circuit analyzed the Missouri second-degree statute,
but for the reasons discussed below, this Court’s analysis is in accord with Mathis. Mathis and its
impact on ACCA jurisprudence is worthy of discussion.
In Mathis, the Supreme Court analyzed an Iowa burglary statute, which defined burglary
as follows:
Any person, having the intent to commit felony, assault or theft therein, who,
having no right, license or privilege to do so, enters an occupied structure, such
occupied structure not being open to the public, or who remains therein after it is
closed to the public or after the person’s right, license or privilege to be there has
expired, or any person having such intent who breaks an occupied structure,
commits burglary.
Iowa Code § 713.1 (1989); United States v. Mathis, 786 F.3d 1068, 1073 (8th Cir. 2015), rev’d,
136 S. Ct. 2243 (2016). The statute defines “occupied structure” to include:
[A]ny building, structure, appurtenances to buildings and structures, land, water or
air vehicle, or similar place adapted for overnight accommodation of persons, or
occupied by persons for the purpose of carrying on business or other activity
therein, or for the storage or safekeeping of anything of value. Such a structure is
an ‘occupied structure’ whether or not a person is actually present.
Iowa Code § 702.12; Mathis, 786 F.3d at 1074, rev’d, 136 S. Ct. 2243 (2016). The chart below
shows a side-by-side comparison of the elements of Iowa burglary, which are paraphrased, and the
elements of generic burglary:
Elements of Iowa second-degree burglary
Elements of generic burglary
an entry or remaining in without license or an unlawful or unprivileged entry into, or
privilege, or breaking
remaining in
an occupied structure
a building or other structure
with the intent to commit a felony, assault or with intent to commit a crime
theft therein
16
Mathis held, based on the parties’ agreement, that the statutory term “occupied structure”
covers a broader range of places than “a building or structure” in generic burglary. 136 S. Ct. at
2250. The Mathis Court then held that no conviction under the Iowa state could count as ACCA
burglary because the listed locations are not alternative elements, but alternative means of
satisfying the locational element of the offense. Id. at 2251-56. The Eighth Circuit relied on
Mathis in changing its course on how to analyze the Missouri second-degree statute. Before
Mathis, the Eighth Circuit held that Missouri second-degree burglary is generic burglary under the
categorical approach. See United States v. Olsson, 742 F.3d 855, 856 (8th Cir. 2014) (Missouri
second-degree burglary is generic burglary under the categorical approach); see also United States
v. Cantrell, 530 F.3d 684, 695 (8th Cir. 2008) (acknowledging in dicta that Missouri second-degree
burglary “appears” to be generic burglary). However, after Mathis, the Eighth Circuit found that
Missouri second-degree burglary is broader than generic burglary based on the Missouri statue’s
similarities to the Iowa statute in Mathis. See United States v. Naylor, 887 F.3d 397, 399, 405 (8th
Cir. 2018) (en banc) (Missouri second-degree burglary statute is broader than generic burglary
based on Mathis) (Missouri second-degree burglary statute is indivisible); United States v. Phillips,
853 F.3d 432, 435-36 (8th Cir. 2017) (applying modified categorical approach, Missouri seconddegree burglary statute is divisible because the phrase “a building or inhabitable structure” lists
two alternative elements), abrogated by Naylor, 887 F.3d at 399, 405; United States v. Bess, 655
Fed. App’x 58 (2016) (based on Mathis, Missouri second-degree burglary is not generic burglary
because inhabitable structure covers a broader range of conduct than generic burglary); and United
States v. Sykes, 844 F.3d 712, 715 (8th Cir. 2016) (same as Phillips), overruled by Naylor, 887
F.3d at 399, 405.
In 2018, the Supreme Court added another significant case to ACCA jurisprudence. In,
Stitt the Supreme Court held that a burglary statute’s coverage of a broad class of vehicles and
structures restricted to those vehicles and structures designed or adapted for overnight use does
not take the statute outside of burglary for purposes of the enumerated offenses clause. 139 S. Ct.
399, 407 (2018). The Stitt Court confirms that a burglary statute’s inclusion of vehicles and
structures other than buildings does not necessarily make the statute broader than generic burglary.
See id. at 406. Rather, language in the statute modifying the class of vehicles and structures must
be considered. See id. Stitt highlights that ACCA burglary does cover a class of vehicles and
17
structures restricted in a way to focus on circumstances where burglary is likely to present a serious
risk of violence. Id. at 407.
In its rationale, Stitt distinguishes the Tennessee and Arkansas burglary statutes at issue in
the consolidated cases before it from burglary statutes which the Supreme Court had previously
found did not count as burglary under the enumerated offenses clause. 139 S. Ct. at 407. First,
Stitt distinguished an earlier Missouri statute referenced in Taylor. The earlier Missouri statute
covered “any boat or vessel, or railroad car.” Id. (emphasis in original); Taylor, 495 U.S. 575, 599
(1990). Stitt explained that the earlier Missouri statute in Taylor “referred to ordinary boats and
vessels often at sea (and railroad cars often filled with cargo, not people), nowhere restricting its
coverage, as here, to vehicles or structures customarily used or adapted for overnight
accommodation. The statutes before us, by using these latter words, more clearly focus upon
circumstances where burglary is likely to present a serious risk of violence.” Id. Next, Stitt
distinguished the Iowa statute analyzed in Mathis. Stitt explained that courts had “construed
[Iowa’s burglary] statute to cover ordinary vehicles because they can be used for storage or
safekeeping . . . [which] is presumably why, as we write in our opinion, ‘all parties agree[d]’ that
Iowa’s burglary statute covers more conduct than generic burglary does.” Id. (cleaned up).
Distinguishing Mathis, the Stitt Court said “what matters is that the Court in Mathis did not decide
the question now before us—that is, whether coverage of vehicles designed or adapted for
overnight use takes the statute outside the generic burglary definition.” Id.
In distinguishing both Taylor and Mathis, Stitt clarifies the analysis in determining whether
a burglary conviction counts as burglary under the enumerated offenses clause. On the one hand,
where a burglary statute covers vehicles and structures, the statute fits within generic burglary by
using language restricting the class of vehicles to focus on circumstances where burglary is likely
to present a serious risk of violence (Arkansas and Tennessee burglary statutes addressed in Stitt
as well as the Missouri second-degree burglary statute at issue in Walker’s case). On the other
hand, where a burglary statute covers vehicles and structures, the statute falls outside the scope of
generic burglary if it either (i) has no modifying language (earlier Missouri burglary statute
addressed in Taylor), or (ii) even though it does have modifying language, the modifying language
does not sufficiently restrict the statute’s coverage to circumstances with inherent potential harm
to persons (Iowa burglary statute addressed in Mathis). Although Stitt was decided well-after
18
Walker’s sentence in 2005, the Supreme Court did not announce anything new; it simply reiterated
the same existing legal principles under Taylor that it has been saying for almost three decades.
Appendix
Ala. Code §§ 13A-7-7, 13A-7-1(2) (1975) (amended 1977) (involving a “building” which
is defined as “[a]ny structure which may be entered and utilized by persons for business, public
use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used
for the lodging of persons or carrying on business therein); Alaska Stat. §§ 11.46.300, 11.46.310,
11.81.900(b)(3) (1989) (effective 1978) (involving a “building” which, “in addition to its usual
meaning, includes any propelled vehicle or structure adapted for overnight accommodation of
persons or for carrying on business.”); Ariz. Rev. Stat. Ann. §§ 13-1501(12), 13-1508 (1978)
(involving a “structure” which is defined as including “any building, object, vehicle, railroad car
or place with sides and a floor, separately securable from any other structure attached to it and
used for lodging, business, transportation, recreation or storage.”); Colo. Rev. Stat §§ 18-4-101(1)(2), 18-4-202, 18-4-203 (1978) (involving a “building” which is defined as “a structure which has
the capacity to contain, and is designed for the shelter of, man, animals, or property, and includes
a ship, trailer, sleeping car, airplane, or other vehicle or place adapted for overnight
accommodations of person or animals, or for a carrying on of business therein.”); Conn. Gen. Stat.
Ann. §§ 53a-100(a), 53a-101, 53a-103 (1985 Cum. Supp.) (involving a “building” which “in
addition to its ordinary meaning, includes any watercraft, aircraft, trailer, sleeping car, railroad car,
or other structure or vehicle or any building with a valid certificate of occupancy.”); Ga. Code
Ann. § 16-7-1(a) (1984) (involving “any building, vehicle, railroad car, watercraft, or other such
structure designed for use as the dwelling of another[.]”); Ind. Code Ann. § 35-43-2-1 (Supp. 1981)
(classifying the level of burglary when “the building or structure is a dwelling”); Iowa Code §§
702.12, 713.1 (1985) (involving an “occupied structure” which includes “any building, structure,
appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for
overnight accommodation of persons, or occupied by persons for the purpose of carrying on
business or other activity therein, or for the storage or safekeeping of anything of value. . . .
However, . . . [an] object or device which is adapted or used for the deposit or storage of anything
of value but which is too small or not designed to allow a person to physically enter or occupy it
is not an ‘occupied structure.’”); La. Rev. Stat. Ann. § 14:62.2 (1978) (involving “Simple burglary
of an inhabited home is the unauthorized entry of any inhabited dwelling house, apartment or other
structure used in whole or in part as a home or place of abode by a person or persons with the
intent to commit a felony or any theft therein[.]”); Me. Rev. Stat. Ann. Tit. 17-A §§ 2(10), 2(24),
401 (1983) (involving “dwelling place” which “means a structure which is adapted for overnight
accommodation of persons, or sections of any structure similarly adapted. A dwelling place does
not include garages or other structures, whether adjacent or attached to the dwelling place, which
are used solely for the storage of property or structures formerly used as dwelling places which are
uninhabitable. It is immaterial whether a person is actually present.”); Minn. Stat. § 621.01, subd.
4 (1961) (involving a “building” which is defined as “any house, vessel, railway car, tent, shop, or
other structure suitable for affording shelter for human beings, or appurtenant to or connected with
a structure so adapted.”); Mont. Code. Ann. §§ 45-2-101(40), 45-2-204 (1983) (involving an
“occupied structure” which means any building, vehicle, or other place suitable for human
occupancy or night lodging of persons or for carrying on business, whether or not a person is
actually present.”); N. H. Rev. Stat. Ann. § 635:1 (1974) (involving an “occupied structure” which
19
includes any “structure, vehicle, boat or place adapted for overnight accommodation of persons,
or for carrying on business therein[.]”); N.J. Stat. Ann. §§ 2C:18-1, 2C:18-2 (West 1982)
(involving a “structure” which includes any “building, room, ship, vessel, car, vehicle, or airplane,
and also means any place adapted for overnight accommodation of persons, or for carrying on
business therein.”); N.Y. Penal Law § 140.00(2) (McKinney 1979) (involving a “building” which
“in addition to its ordinary meaning, includes any structure, vehicle or watercraft used for
overnight lodging of persons, or used by persons for carrying on business therein, or used as an
elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer.”);
N.C. Gen. Stat. § 14-54(c) (1981) (“building shall be construed to include any dwelling, dwelling
house, uninhabited house, building under construction, building, building within the curtilage of a
dwelling house, and any other structure designed to house or secure within it any activity or
property.”); N.D. Cent. Code §§ 12.1-22-02, 12.1-22-06(4) (1973) (“occupied structure means a
structure or vehicle: a. Where any person lives or carries on business or other calling; or b. Which
is used for overnight accommodation of person. c. Any such structure or vehicle is deemed to be
‘occupied’ regardless of whether a person is actually present.”); Ohio Rev. Code Ann. §§ 2909.01,
2911.11, 2911.12, (Lexis 1982) (involving an “occupied structure” which includes any “house,
building, outbuilding, watercraft, aircraft, railroad, car, truck, trailer, tent, or other structure,
vehicle, or shelter, or any portion thereof, to which any of the following applies… (D) in which at
the time any person is present or likely to be present”) (explaining that (D) “includes the otherwise
deserted warehouse in which a watchmen is on the scene, and also includes the retail store which
is open for business but which is momentarily empty.”); Okla. Stat. tit. 21 §§ 1431, 1435, 1439
(1971) (involving a “dwelling house” which “includes every house or edifice, any part of which
has usually been occupied by any person lodging therein at night[.]”) (defining “dwelling” as
including “every house, trailer, vessel, apartment or other premises, any part of which has usually
been occupied by a person lodging therein at night and any structure joined to and immediately
connected with such house, trailer or apartment.”); Ore. Rev. Stat. §§ 164.205, 164.215, 164.225
(1985) (involving a “building” which, “in addition to its ordinary meaning, includes any booth,
vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for
carrying on business therein.”); 18 Pa. Stat. And Cons. Stat. Ann. §§ 3501, 3502 (West 1973)
(involving an “occupied structure” which includes any “structure, vehicle or place adapted for
overnight accommodation of persons, or for carrying on business therein.”); S.C. Code Ann. § 1611-10 (1976) (involving a “dwelling house” defined as “any house, outhouse, apartment, building,
erection, shed or box in which there sleeps a proprietor, tenant, watchman, clerk, laborer or person
who lodges there with a view to the protection of property[.]”); S.D. Codified Laws §§ 22-1-2(49),
22-32-1, 22-32-3, 22-32-8 (1988) (effective 1976) (involving an “occupied structure”) (defining
structure as “any house, building, outbuilding, motor vehicle, watercraft, aircraft, railroad car,
truck, trailer, tent, or other edifice, vehicle or shelter, or any portion thereof.”);Tex. Penal Code
Ann. §§ 30.01, 30.02 (West 1989) (effective 1974) (involving a “building” which includes any
“enclosed structure intended for use or occupation as a habitation or for some purpose of trade,
manufacture, ornament, or use.”); Utah Code Ann. §§ 76-6-201(1), 76-6-202 (1977) (involving a
“building” which includes, “in addition to its ordinary meaning, means any water-craft, aircraft,
trailer, sleeping car, or other structure or vehicle adapted for overnight accommodation of person
or for carrying on business therein.”); and Wash. Rev. Code §§ 9A.04.110(5), 9A.52.030(1) (1975)
(involving a “building” which includes “any dwelling, fenced area, vehicle, railway car, cargo
container, or any other structure used for lodging of persons or for carrying on business therein, or
for the use, sale or deposit of goods; each unit of a building consisting of two or more units
20
separately secured or occupied is a separate building.”); W. Va. Code Ann. § 61-3-11 (Lexis 1984)
(involving a “dwelling house” which includes “a mobile home, house trailer, modular home or
self-propelled motor home, used as a dwelling regularly or only from time to time, or any other
nonmotive vehicle primarily designed for human habitation and occupancy.”).
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