United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge.
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
 is Denied.
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.
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 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
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
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
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
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.
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.
would therefore not be entitled to relief under
Johnson even if he had brought his challenge in the
reasons stated above, Petitioner's Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241  ...