McShane v. USA
Filing
3
ORDER DENYING PETITIONER BRONSON MCSHANE'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE (ECF No. 125) AND DENYING A CERTIFICATE OF APPEALABILITY re 1 as to Bronson McShane - Signed by JUDGE HELEN GILL MOR on 9/18/2017. (CR 08-00736 HG-01; CV 16-00206 HG-RLP) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRONSON MCSHANE,
)
)
)
Petitioner,
)
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
)
Respondent.
_______________________________ )
Crim. No. 08-00736 HG-01
Civ. No. 16-00206 HG-RLP
ORDER DENYING PETITIONER BRONSON MCSHANE’S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE (ECF No. 125)
AND DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Bronson McShane filed a Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.
Petitioner argues that his sentence for Using a Firearm During
And In Relation To A Crime Of Violence in violation of 18 U.S.C.
§§ 2, 924(c)(1)(B)(i) is unconstitutional.
Petitioner’s Section 2255 Motion (ECF No. 125) is DENIED.
A Certificate of Appealability is DENIED.
BACKGROUND
On April 8, 2009, a grand jury returned a Superseding
Indictment charging Petitioner Bronson McShane as follows:
Count 1 for conspiracy to commit a Hobbs Act Robbery and
1
commission of a Hobbs Act Robbery, in violation of 18 U.S.C. §§
2, 1951.
As to Count 1, the Superseding Indictment stated:
[T]he defendants did conspire to obtain and did obtain
property belonging to Leilani Lounge consisting of
United States currency and a cash register, from the
person and in the presence of T.Y., who was the owner
of Leilani Lounge, which was engaged in interstate
commerce, against T.Y.’s will by means of actual and
threatened force, violence, and fear of injury,
immediate and future, on T.Y.
(Superseding Indictment on p. 2, ECF No. 24) (emphasis
added).
Count 2 for use of a firearm during and in relation to a
crime of violence, a violation of 18 U.S.C. §§ 2,
924(c)(1)(B)(i).
As to Count 2, the Superseding Indictment
stated:
On or about November 10, 2008, in the District of
Hawaii, the defendant, BRONSON MCSHANE and his
unindicted co-defendant knowingly used, carried, and
brandished a firearm, to wit: a short-barreled shotgun,
during and in relation to a crime of violence, to wit:
a Hobbs Act Robbery as charged in Count 1 of this
Indictment.
(Superseding Indictment on pp. 2-3, ECF No. 24).
On June 18, 2009, Petitioner McShane pled guilty before a
Magistrate Judge to Counts 1 and 2 of the Superseding Indictment.
(ECF No. 46).
There was no plea agreement.
The Government recited the facts to the crime at the change
of plea hearing as follows:
AUSA CHING: Specifically, with regard to the
facts, the government would prove beyond a
reasonable doubt that on or about November 10th,
2
2008, at about 1:23 in the morning, the defendant
-- co-defendant Aaron Malama, an unindicted
co-defendant, robbed the Leilani Lounge, a
commercial liquor establishment within the
District of Hawaii...Defendant [McShane] wore a
white mask and was armed with a knife. The
unindicted co-defendant was wearing a dark colored
mask and was armed with a short-barreled shotgun.
There was only one patron in the bar at the
time and when Mr. McShane and the unindicted -when, excuse me, Mr. McShane and the unindicted
co-defendant entered the bar, Mr. McShane pushed
the patron to the ground and the patron
immediately complied. Mr. McShane then directed
his attention to a -- the owner of the bar and he
dragged the owner by the hair moving her several
feet to get her closer to the cash register.
When the keys were not produced, the
unindicted co-defendant ripped the cash register
from the counter area and both Mr. McShane and the
unindicted co-defendant ran out of the bar with
the cash register which contained U.S. currency.
There was also a friend of the owner's who
was in the bar at the time -- or excuse me, in the
lounge at the time visiting the owner when Mr.
McShane and the unindicted co-defendant entered
the bar. The unindicted co-defendant pointed the
short-barreled shotgun at the owner's friend and
demanded the keys for the cash register. When the
owner's friend told the unindicted co-defendant
that she didn't work there and didn't have the
keys, the unindicted co-defendant then struck her
in the face with the short-barreled shotgun,
causing her pain and causing her to bleed from the
nose. This injury was later diagnosed as a
fracture.
The owner, the owner's friend and the patron
were all scared at the time and threatened by both
the defendant's and the unindicted co-defendant's
actions. The owner did not give them permission
to take the cash register or the cash from Leilani
Lounge...
Mr. McShane knew that the unindicted
3
co-defendant was armed with a sawed off or
short-barreled shotgun and that would -- that it
would be used as part of the robbery and that in
fact this firearm was used to hit the owner's
friend.
(Hearing Transcript from Change of Plea Hearing at
pp. 12-14, ECF No. 130).
Petitioner McShane testified at his change of plea
hearing and agreed to the Government’s recitation of the
facts.
Defendant stated the events in his own words, as
follows:
THE COURT: Okay. Mr. McShane, as to your
involvement in this matter are these facts all
true and correct in every respect?
PETITIONER MCSHANE: Yes.
THE COURT: Would you tell me briefly in your own
words what you did?
PETITIONER MCSHANE: We pulled up to Leilani Lounge
late, right before the bar closed. Hopped out of
the car, walk in. I did put one guy to the
ground. He complied, stayed there. Grabbed the
other lady by her hair, held her down because she
was resisting. I didn't want to hurt her. Didn't
mean to hurt her. Just was on drugs and just high
and we ended up robbing the place, grabbing the
cash register and running out...
THE COURT: And the gun that Mr. Ching described,
that was used in the course of this as well.
PETITIONER MCSHANE: Yes, it was used and it was
exactly used to hit the lady on top the nose to –
by my unindicted co-defendant...Prior to the
robbery I knew the firearm – we hop – I hopped out
with a machete knife and he hopped out with a
firearm.
(Hearing Transcript from Change of Plea Hearing at
pp. 15-16, ECF No. 130).
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On May 11, 2010, the Court held a sentencing hearing as to
Petitioner McShane.
(ECF No. 109).
Petitioner was sentenced to 33 months imprisonment as to
Count 1 and 120 months imprisonment as to Count 2 to be served
consecutively.
(Judgment, ECF No. 110).
Petitioner did not appeal his conviction or his sentence.
More than five years later, on June 26, 2015, the United
States Supreme Court issued its opinion in Johnson v. United
States, 135 S.Ct. 2551 (2015).
The holding in Johnson
invalidated the Residual Clause of the Armed Career Criminal Act
of 1984, 18 U.S.C. § 924(e), finding it unconstitutionally vague.
135 S.Ct. at 2557-58.
On April 29, 2016, Petitioner filed a Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence By a Person in
Federal Custody.
(ECF No. 125).
Petitioner also filed a Motion for Release on Bail pending
the resolution of his Section 2255 Motion.
(ECF No. 126).
On the same date, Petitioner filed a MEMORANDUM IN SUPPORT
OF §2255 MOTION AND MOTION FOR RELEASE ON BAIL.
(ECF No. 127).
On June 15, 2016, the Court held a hearing on Petitioner’s
Motion for Release on Bail.
(ECF No. 137).
On June 27, 2016, the Court issued an ORDER DENYING
DEFENDANT BRONSON MCSHANE’S MOTION FOR RELEASE ON BAIL.
140).
5
(ECF No.
On July 8, 2016, the Court issued an ORDER RE: HOLDING
MERITS REVIEW ON GUIDELINE AND SECTION 924(c) UNITED STATES V.
JOHNSON CLAIMS IN ABEYANCE PENDING A DECISION IN BECKLES V.
UNITED STATES.
(ECF No. 143).
On March 6, 2017, the United States Supreme Court issued its
decision in Beckles v. United States, 137 S.Ct. 886 (2017).
On April 11, 2017, Petitioner filed SUPPLEMENTAL MEMORANDUM
in support of his Section 2255 Motion.
(ECF No. 157).
On July 31, 2017, the Government filed UNITED STATES’
RESPONSE TO PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY.
(ECF No. 169).
ANALYSIS
I.
Petitioner’s Section 2255 Motion Is Untimely
The Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2255,1 provides a one-year limitation period for
filing a petition for habeas corpus relief (“Section 2255
Motion”).
The limitation period for a Section 2255 Motion runs
from the date on which a judgment of conviction becomes final,
unless an alternative start date is established by a condition
set forth in the statute.
28 U.S.C. § 2255(f).
1
The AEDPA is codified as 28 U.S.C. §§ 2241 through 2255
and 28 U.S.C. §§ 2261 through 2266. Habeas relief sought by
federal prisoners is governed by 28 U.S.C. § 2255.
6
A.
Petitioner’s Conviction Became Final on June 16, 2010
On June 2, 2010, Judgment was entered against Petitioner.
(ECF No. 110).
Petitioner did not file an appeal.
On June 16,
2010, fourteen days after Judgment was entered, Petitioner’s
conviction became final.
Fed. R. App. P. 4(b); Gonzalez v.
Thaler, 132 S.Ct. 641, 653 (2012); Moshier v. United States, 402
F.3d 116, 118 (2d Cir. 2005).
Absent some alternative start date, Petitioner’s time for
filing a Section 2255 Motion expired on or about June 16, 2011.
Petitioner filed his Section 2255 Motion on April 29, 2016,
nearly five years after the date when his judgment became final.
B.
The Decision in Johnson v. United States Does Not Apply
to Petitioner McShane
A United States Supreme Court decision that recognizes a new
right that is retroactively applicable to cases on collateral
review provides an exception to the one-year deadline for filing
a Section 2255 Motion.
28 U.S.C. § 2255(f); Dodd v. United
States, 545 U.S. 353, 358 (2005).
Petitioner argues that his Section 2255 Motion is timely
because it was filed within a year of the United States Supreme
Court’s decision in Johnson v. United States, 135 S.Ct. 2551
(2015).
The Johnson decision has been found to apply retroactively
7
to cases on collateral review.
Welch v. United States, 136 S.Ct.
1257, 1268 (2016).
Petitioner has not, however, demonstrated that the holding
in Johnson applies to his case.
The holding in Johnson prohibits
enhancing sentences of individuals pursuant to the Residual
Clause of the Armed Career Criminal Act of 1984, 18 U.S.C. §
924(e)(2)(B).
Johnson, 135 S.Ct. at 2557-58.
Petitioner was not sentenced pursuant to the Armed Career
Criminal Act in 18 U.S.C. § 924(e)(2)(B).
Petitioner was
sentenced pursuant to the Element Clause of a Crime of Violence
in 18 U.S.C. § 924(c)(3)(A).
Johnson invalidated the Residual Clause of the Armed Career
Criminal Act that defined “violent felony” as any felony that
“involves conduct that presents a serious potential risk of
physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii).
The United States Supreme Court held in Johnson that the
Residual Clause of the Armed Career Criminal Act was
unconstitutional pursuant to the void-for-vagueness doctrine that
is mandated by the Due Process Clause of the Fifth Amendment to
the United States Constitution.
Welch, 136 S.Ct. at 1261.
The
void-for-vagueness doctrine prohibits the government from
imposing sanctions under a criminal law that is so vague that it
fails to give ordinary people fair notice of the conduct it
punishes or is so standardless that it invites arbitrary
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enforcement.
Id. at 1261-62.
Petitioner McShane was not sentenced pursuant to an
unconstitutionally vague criminal statute as was the defendant in
Johnson.
Petitioner McShane was sentenced pursuant to 18 U.S.C.
§ 924(c)(3)(A) for using a firearm during and in relation to a
crime of violence that had an element of the use of actual or
threatened physical force.
Petitioner argues that the reasoning in Johnson should be
extended to apply to 18 U.S.C. § 924(c)(3).
Petitioner relies on
the Ninth Circuit Court of Appeals decision in Dimaya v. Lynch,
803 F.3d 1110, 1117-19 (9th Cir. 2015) (cert. granted in Lynch v.
Dimaya, 137 S.Ct. 31 (Sept. 29, 2016)), which involved the
residual clause of the Immigration and Nationality Act’s
definition of “aggravated felony.”
Petitioner’s reliance on Dimaya is unpersuasive.
not comparable to this case.
Dimaya is
Dimaya involved the review of
underlying California state convictions and their applicability
as “aggravated felonies” in the immigration removal context.
Neither the United States Supreme Court nor the Ninth
Circuit Court of Appeals has extended the holding in Johnson to
find that it applies to 18 U.S.C. § 924(c)(3)(A).
The reasoning
in Johnson as to the void-for-vagueness doctrine does not apply
to the Element Clause of a Crime of Violence.
Petitioner’s Section 2255 Motion (ECF No. 125) is untimely.
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The holding in Johnson does not apply to Petitioner and does not
provide an exception to the one-year filing deadline applicable
in this case.
II.
Petitioner’s Section 2255 Is Without Merit
Even if Petitioner’s Section 2255 Motion was timely, there
is no merit to Petitioner’s argument that his sentence for Using
a Firearm During And In Relation To A Crime Of Violence in
violation of 18 U.S.C. §§ 2, 924(c)(1)(B)(i) is unconstitutional.
A.
The Statute Under Which Petitioner Was Convicted Is Not
Unconstitutionally Vague
A “crime of violence” for purposes of the statute under
which Petitioner was convicted is defined as follows:
[T]he term “crime of violence” means an offense that is
a felony and–
(A)
has as an element the use, attempted use, or
threatened use of physical force against the
person or property of another, or
(B)
that by its nature, involves a substantial
risk that physical force against the person
or property of another may be used in the
course of committing the offense.
18 U.S.C. § 924(c)(3).
Petitioner was convicted pursuant to subsection (A) of 18
U.S.C. § 924(c)(3), the Element Clause of a Crime of Violence.
The Element Clause of a Crime of Violence is not
unconstitutionally vague.
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The Court found that Petitioner committed a crime of
violence when he committed a Hobbs Act Robbery by use of physical
force.
The Superseding Indictment, the transcript of Defendant’s
Change of Plea Hearing, and the Court’s findings at the
Sentencing Hearing demonstrate that Defendant was convicted
pursuant to the Element Clause of a Crime of Violence.
1.
Superseding Indictment
A Hobbs Act Robbery is defined by statute as:
[T]he unlawful taking or obtaining of personal property
from the person or in the presence of another, against
his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to
his person or property, or property in his custody or
possession, or the person or property of a relative or
member of his family or of anyone in his company at the
time of the taking or obtaining.
18 U.S.C. § 1951(b)(1).
Petitioner was charged in Count 1 of the Superseding
Indictment for conspiracy to commit and substantively committing
a Hobbs Act Robbery in violation of 18 U.S.C. §§ 2, 1951.2
(Superseding Indictment at pp. 2-3, ECF No. 24).
2
Count 1 of the Superseding Indictment contained two
separate offenses - conspiracy and the substantive Hobbs Act
Robbery. The Superseding Indictment appears to be duplicitous.
An indictment is duplicitous when it joins two or more distinct
and separate offenses into a single count. United States v.
Gordon, 844 F.2d 1397, 1400 (9th Cir. 1988). Where, as here, the
defendant did not object to the indictment’s duplicity prior to
his change of plea, the objection is waived. See id.; United
States v. Loew, 364 Fed. Appx. 333, 335 (9th Cir. 2010).
11
The Superseding Indictment charged Petitioner with
committing the Hobbs Act Robbery by use of actual and threatened
force.
The Superseding Indictment in Count 1 stated that
Defendant “did conspire to obtain and did obtain property
belonging to Leilani Lounge...against T.Y’s will by means of
actual and threatened force, violence, and fear of injury,
immediate and future, on T.Y.”
2.
(Id. at p. 2) (emphasis added).
Change of Plea Hearing
The transcript from Petitioner’s Change of Plea Hearing
reflected that Petitioner admitted to committing a substantive
Hobbs Act Robbery by use of physical force.
Petitioner testified
that he entered a bar wearing a mask and carrying a machete and
that he used force to put a bar patron on the ground.
(Hearing
Transcript from Change of Plea Hearing at pp. 15-16, ECF No.
130).
Petitioner testified as to his actions, stating that he
“[g]rabbed the other lady by her hair, held her down because she
was resisting...we ended up robbing the place, grabbing the cash
register and running out.”
(Id.)
Petitioner also testified that
he knew his co-defendant had brought a small-barreled shotgun to
use to commit the robbery and acknowledged that “[the gun] was
used and it was exactly used to hit the lady on top the nose.”
(Id.)
12
3.
Sentencing Hearing
At sentencing, the Court found that Petitioner committed the
substantive Hobbs Act Robbery by use of physical force.
The
Court stated:
The crime that you are being sentenced for today is a
serious crime. Robbery, confrontation to people to
take their property, using a weapon, and then having a
weapon as a threatening factor. And then to actually
have one of the people involved in it – the description
involves that one of the perpetrators pulled TY by her
hair and moved her several feet in order to move her
closer to the cash area and then removed the wallet
from the shirt pocket but later dropped it by the bar.
Ripped the cash register away from the bar’s counter
and left the scene.
The further description is that LK was taken to a
nearby hospital for treatment for her injuries
sustained when she was struck by one of the
perpetrators in the face with the shotgun. The
attending physician completed the [Hawaii Police
Department] physician’s report and requested – and
there was a discussion about whether or not it was
bodily injury or serious bodily injury. And the
attending physician rated her injuries as substantial
bodily injury, because she suffered a nasal and sinus
fracture.
(Transcript from Sentencing dated May 11, 2010, at pp. 1112, ECF No. 133).
Petitioner was convicted in Count 2 of the Superseding
Indictment based on a finding that he had committed an underlying
Hobbs Act Robbery offense by use of force.
924(c)(3)(A).
18 U.S.C. §
The statute is not unconstitutionally vague.
There is no merit to Petitioner’s Section 2255 Motion.
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B.
Hobbs Act Robbery Is A Crime Of Violence
Petitioner’s Hobbs Act Robbery constituted a crime of
violence pursuant to the Element Clause of a Crime of Violence.
In United States v. Howard, 650 Fed. Appx. 466, 468, (9th
Cir. May 23, 2016), the Ninth Circuit Court of Appeals held that
a Hobbs Act Robbery is a categorical match to the definition of
crime of violence.3
Id.
The appellate court held that the Hobbs
Act Robbery committed by intimidation is not overly broad and
qualifies as a crime of violence pursuant to the Element Clause
3
The Third Circuit Court of Appeals has explained that the
modified categorical approach is the more appropriate method to
analyze a firearms conviction committed contemporaneously with a
Hobbs Act robbery:
Because determination of whether a particular crime
qualifies as a “crime of violence” under § 924(c)
depends upon both the predicate offense, here Hobbs Act
robbery, and the contemporaneous conviction under §
924(c), the § 924(c) conviction will shed light on the
means by which the predicate offense was committed.
Looking at a contemporaneous conviction allows a court
to determine the basis for a defendant’s predicate
conviction. The defendant suffers no prejudice because
the relevant indictment and jury instructions are
before the court.
We conclude that analyzing a § 924(c) predicate offense
in a vacuum is unwarranted when the convictions of
contemporaneous offenses, read together, necessarily
support the determination that the predicate offense
was committed with the “use, attempted use, or
threatened use of physical force against the person or
property of another.”
United States v. Robinson, 844 F.3d 137, 143 (3rd Cir.
2016), petition for cert. filed July 6, 2017.
14
of a Crime of Violence because it places a person in fear of
physical injury.
Id.; see United States v. Major, 2017 WL
3593374, *4 (E.D. Cal. Aug. 21, 2017) (denying a Section 2255
Motion and finding a Hobbs Act Robbery is categorically a crime
of violence); United States v. Casas, 2017 WL 1008109, *4 (S.D.
Cal. Mar. 14, 2017) (denying a Section 2255 on the basis that a
Hobbs Act robbery is categorically a crime of violence under the
force clause).
The Second, Eighth, and Eleventh Circuit courts agree.
See
In re Saint Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016) (holding
that Hobbs Act robbery “clearly qualifies as a ‘crime of
violence’ under” the elements clause in Section 924(c)(3)(A));
United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); United
States v. Hill, 832 F.3d 135, 142–44 (2d Cir. 2016).
The Howard decision reaffirmed prior Ninth Circuit Court of
Appeals precedent finding that a Hobbs Act Robbery “indisputably
qualifies as a crime of violence.”
United States v. Mendez, 992
F.2d 1488, 1491 (9th Cir. 1993); see also United States v. Selfa,
918 F.2d 749, 751 (9th Cir. 1990).
At the May 11, 2010 sentencing, the Court found that
Petitioner substantively committed a Hobbs Act Robbery, which
constituted a crime of violence for purposes of Petitioner’s
conviction in Count 2.
See United States v. Hunter, 887 F.2d
1001, 1003 (9th Cir. 1989) (per curiam); United States v. Luong,
15
610 Fed. Appx. 598, 600 (9th Cir. 2015) (the defendants were
properly found guilty of a crime of violence involving a firearm
and sentenced to life imprisonment, even though they were not
charged with the offense of first-degree murder upon which their
crime of violence charges were predicated).
Petitioner’s Section 2255 Motion (ECF No. 125) is DENIED.
III. Petitioner Is Not Entitled To A Certificate Of Appealability
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
of 1996 provides that a Certificate of Appealability may be
issued in a habeas corpus proceeding “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 requires a prisoner to show that
“reasonable jurists could debate whether ... the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.”
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).
Petitioner McShane’s Section 2255 Motion has not made a
substantial showing that Petitioner was deprived of a
constitutional right.
Petitioner’s arguments are not supported
by the record and applicable law.
Reasonable jurists would not
debate the Court’s conclusion, and there is no reason to
encourage further proceedings.
16
A Certificate of Appealability is DENIED.
CONCLUSION
PETITIONER BRONSON MCSHANE’S MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE (ECF No. 125) is
DENIED.
A Certificate of Appealability is DENIED.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, September 18, 2017.
___________________________________
Helen Gillmor
United States District Judge
Bronson McShane v. United States of America, Criminal No. 0800736 HG-01, Civil No. 16-00206 HG-RLP; ORDER DENYING PETITIONER
BRONSON MCSHANE’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT SENTENCE (ECF No. 125) AND DENYING A
CERTIFICATE OF APPEALABILITY
17
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