Balva v. USA

Filing 1

ORDER denying Motion to Vacate and denying a Certificate of Appealability. Signed by Judge Kent J. Dawson on 4/13/2020. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff/Respondent,
ORDER
v.
SHAWN MICHAEL BALVA,

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Case No. 2:15-cr-0307-KJD-VCF
Related Case: 2:19-cv-1750-KJD

Defendant/Petitioner.
Before the Court is defendant/petitioner Shawn Michael Balva’s Motion to Vacate or Set

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Aside His Sentence under 28 U.S.C § 2255 (ECF No. 40). Balva is currently serving a ninety-

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six-month total sentence after pleading guilty to two counts of interference with commerce by

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robbery (Hobbs Act robbery) and one count of brandishing a firearm during the commission of a

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violent crime under 18 U.S.C. § 924(c)(1)(A)(ii). While Balva received only twelve months and

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one day for his Hobbs Act robbery conviction, he received an eighty-four-month consecutive

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sentence under § 924(c). Balva now moves to vacate his § 924(c) sentence under 28 U.S.C.

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§ 2255 and United States v. Davis, 139 S. Ct. 2319 (2019). He argues that his Hobbs Act robbery

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conviction no longer qualifies as a qualifying crime of violence under § 924(c)’s residual clause

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and that it never qualified as a crime of violence under § 924(c)’s so-called elements clause.

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However, the Ninth Circuit has already determined that Hobbs Act robbery is in fact a crime of

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violence under § 924(c)’s elements clause. Because Hobbs Act robbery is a crime of violence,

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Balva’s § 924(c) conviction is valid, and his petition fails.

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I.

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In the early morning hours of August 25, 2015, Shawn Balva robbed four convenience

Background

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stores and a Subway sandwich shop at gunpoint. The robberies took less than an hour and all

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followed the same pattern. Balva would enter the store dressed in a dark jacket and black ski-

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mask, point a silver handgun at the clerk, and demand the money. Plea Agreement 4–5, ECF No.

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22. In one robbery, Balva also asked whether the store had a safe. When the clerk replied that it

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did not, Balva took money from the cash register and fled. Id. at 5. Police apprehended Balva

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that same day during a felony traffic stop. Id. at 6. Police found a silver .38 caliber handgun,

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$554.00 in cash, and clothing used in the robberies when they searched Balva’s vehicle. Id.

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Police read Balva his Miranda rights, and he subsequently confessed to four of the robberies. Id.

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The United States charged Balva with two counts of Hobbs Act robbery and one count of

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brandishing a firearm during the commission of a crime of violence in April of 2016.

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Information, ECF No. 20. Balva pleaded guilty to all three counts subject to a plea agreement

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shortly thereafter. The agreement protected Balva’s right to request a sentence under the advisory

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guideline range, and the government agreed to seek a sentence at the low-end of the range. Id. at

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12–13. Ultimately, the Court sentenced Balva to concurrent sentences of twelve months and one

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day for the Hobbs Act robbery charges and eighty-four months consecutive for the § 924(c)

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charge. Judgment 2, ECF No. 36. Balva’s total sentence is ninety-six months and one day. Id.

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His proposed release date is in February of 2023.

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Balva did not appeal, and his judgment of conviction became final on October 4, 2016,

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fourteen days after entry of judgment. See Fed. R. App. P. 4(b)(1)(A). Nearly three years later,

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the United States Supreme Court issued United States v. Davis, which invalidated § 924(c)’s

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residual clause. 139 S. Ct. 2319 (2019). Davis’s holding that § 924(c)’s residual clause was

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unconstitutionally vague prompted this petition. Though the government has not responded, the

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Court has adequate information to decide Balva’s motion.

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II.

Legal Standard

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A defendant in federal custody may challenge a conviction that “was imposed in

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violation of the Constitution or laws of the United States” under 28 U.S.C. § 2255(a). However,

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§ 2255 is not intended to give criminal defendants multiple opportunities to challenge their

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sentences. United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985). Rather, § 2255 limits

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relief to cases where a “fundamental defect” in the defendant’s proceedings resulted in a

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“complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974). That

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limitation is based on the presumption that a defendant who did not appeal his conviction or

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whose was conviction upheld on direct appeal has been fairly and legitimately convicted. United

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States v. Frady, 456 U.S. 152, 164 (1982).

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For similar reasons, the United States need not respond to a § 2255 petition until ordered

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to do so. Rule 4(b) of the Rules Governing § 2255 Petitions requires the Court to promptly

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review each § 2255 petition. If the Court cannot summarily dismiss the petition, it must order the

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United States attorney to respond. After reviewing the government’s response, the Court must

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hold an evidentiary hearing unless the record makes clear that the petitioner is not entitled to

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relief. United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988). Alternatively, the Court

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may dismiss the petition without response or hearing if it is clear from the record that the

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petitioner does not state a claim for relief or if the claims are frivolous or palpably incredible.

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United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989) (citing Baumann v. United States,

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692 F.2d 565, 570–71 (9th Cir. 1982)).

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III.

Analysis

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Balva’s petition presents two issues. The threshold issue is whether his petition is timely

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under § 2255’s limitations period. If so, the Court may then assess the merits of the petition,

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which is whether Hobbs Act robbery qualifies as a crime of violence after Davis. The Court

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determines that it can resolve Balva’s petition without ordering a response or holding an

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evidentiary hearing. See Espinoza, 866 F.2d at 1069.

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A. Balva’s § 2255 Petition is Timely

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Balva’s petition is governed by the Antiterrorism and Effective Death Penalty Act

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(AEDPA). Among other things, AEDPA sought to “eliminate delays in the federal habeas review

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process.” Holland v. Florida, 560 U.S. 631, 648 (2010). To that end, the Act imposed a one-year

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statute of limitations on habeas petitions that did not previously exist. When the clock starts on a

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habeas petition is somewhat of a moving target. Title 28 U.S.C. § 2255(f) identifies four

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triggering events, any of which start the clock on a petitioner’ federal habeas claim. Those

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triggering events are: (1) the date the defendant’s judgment became final; (2) the date on which

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an unconstitutional barrier to filing a habeas petition is removed; (3) the date on which the

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Supreme Court recognized a new right and made that right retroactively available to the

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petitioner; or (4) the date on which the facts supporting the habeas petition could have been

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discovered through reasonable diligence. 28 U.S.C. § 2255(f)(1)–(4). The failure to timely

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present a habeas petition results in a time bar unless the petitioner shows that equitable tolling is

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warranted. Holland, 560 U.S. at 649–50.

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Balva’s petition depends on § 2255(f)’s third triggering event: that the Supreme Court

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recognized a new right that affects his sentence and that the right is retroactive. He argues that

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Davis created a new right for defendants sentenced under § 924(c)’s residual clause and that the

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right is retroactively available to him. This is not a novel argument. Three years before Davis,

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the Supreme Court issued Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a

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nearly identical residual clause in the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)).

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Shortly thereafter, the Supreme Court determined (1) that Johnson recognized a new right to

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criminal defendants charged under the ACCA’s residual clause and (2) that that right was

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retroactive to previously sentenced defendants. See Welch v. United States, 136 S. Ct. 1257,

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1265 (2016).

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Welch recognized that Johnson was retroactive, but no case has explicitly made Davis

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retroactive. Although the Supreme Court has not explicitly held Davis to be retroactive like it did

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with Johnson, the Court assumes that Davis indeed applies to defendants previously sentenced

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under § 924(c)’s residual clause. Generally, a change to the rules of criminal procedure do not

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apply retroactively to cases that are final before the change is announced. Teague v. Lane, 489

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U.S. 288, 310 (1989). However, substantive changes to the criminal law itself do apply

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retroactively. Schriro v. Summerlin, 542 U.S. 348, 351–52 (2004). A “substantive” change in the

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law either narrows the scope of a criminal statute based on the statute’s terms or places a

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particular group of people outside the statute’s reach to punish. Id. at 352. Similarly, new

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“watershed” rules of criminal procedure that implicate “the fundamental fairness and accuracy of

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the criminal proceeding” are also retroactive. Welch, 136 S. Ct. at 1264 (citing Saffle v. Parks,

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494 U.S. 484, 495 (1990)).

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Like Johnson, Davis applies retroactively because it represents a substantive change to

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the criminal law. By finding § 924(c(1)(A)(ii)’s terms to be unconstitutionally vague, Davis

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placed any defendant charged under § 924(c)’s residual clause outside the reach of the criminal

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statute. Therefore, any defendant sentenced under that clause had one year from the time the

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Supreme Court issued Davis to challenge his conviction. Because Davis was issued June 24,

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2019, and Balva filed this motion in October of 2019, his petition fell within AEDPA’s one-year

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limitations period. Therefore, Balva’s petition is timely.

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B. Hobbs Act Robbery is a Crime of Violence
Though Balva’s petition is timely, it fails on the merits because Hobbs Act robbery

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qualifies as a crime of violence under § 924(c)’s elements clause. Section 924(c)(1)(A)(i)

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imposes a mandatory minimum sentence of at least five years on any offender who uses or

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carries a firearm during any crime of violence. The five-year minimum sentence increases to

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seven years if the defendant brandishes the firearm and ten years if he discharges it. Id.

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§ 924(c)(1)(A)(ii)–(iii). The minimum sentences under § 924(c)(1)(A) must be served

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consecutive to the sentence for the underlying offense and are not probationable. Id.

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§ 924(c)(1)(D). Thus, a conviction under § 924(c)(1)(A) stacks a lengthy sentence on top of the

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sentence for any underlying offenses. However, these minimums only kick in if the defendant

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commits an underlying “crime of violence.” Id. § 924(c)(1)(A). If the underlying offense does

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not qualify as a crime of violence under the statute, the defendant cannot be sentenced to

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§ 924(c)(1)(A)’s mandatory minimums.

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Section 924(c)(3) defines “crime of violence” two ways, and the Court may impose the

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mandatory minimum sentence on a defendant whose underlying offense meets either definition.

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The first is any crime that “has an element the use, attempted use, or threatened use of physical

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force against the person or property of another.” Id. § 924(c)(3)(A). This has come to be known

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as § 924(c)’s “elements” clause. The second definition covers any crime “that by its nature,

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involves a substantial risk that physical force against the person or property of another may be

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used in the course of committing the offense.” Id. § 924(c)(3)(B). This has come to be known as

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§ 924(c)’s “residual clause.” Davis struck down the residual clause, finding that the statute

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depended too much on individual judges’ interpretations of the degree of risk posed by “a

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crime’s imagined ‘ordinary case.’” 139 S. Ct. at 2326.
Balva correctly argues that Davis invalidated § 924(c)’s residual clause like Johnson

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invalidated the ACCA’s nearly identical residual clause. If the now-defunct residual clause was

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the only way the government could prevail on its § 924(c) conviction, this would be a much

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easier case. However, after Davis, the elements clause remains. If Balva’s underlying Hobbs Act

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robbery conviction qualifies as a crime of violence under the elements clause, his sentence is

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constitutional, and his petition fails.

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The Court applies the categorical approach to determine whether an underlying offense

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qualifies as a crime of violence. The general purpose of the categorical approach is to restrict the

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definition of an offender’s underlying crime to the statutory elements of that crime. Descamps v.

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United States, 570 U.S. 254, 263 (2013) (“a focus on the elements, rather than the facts, of a

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crime” is the “central feature” of the categorical approach). To that end, the Court compares the

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statutory elements of the defendant’s underlying offense to the generic crime. Importantly, the

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Court evaluates the underlying offense based solely on how the law defines the offense and not

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how the individual defendant committed the crime. Johnson v. United States, 135 S. Ct. 2551,

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2557 (2015). If the statutory elements of the underlying offense are the same or are narrower

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than the elements of the generic offense, the two crimes are a categorical match, and the crime

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constitutes a crime of violence. Descamps, 570 U.S. at 257. However, the underlying offense is

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not a crime of violence if its elements prohibit more conduct than the generic offense. Id. at 261.

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This is so even if the defendant committed each of the elements of the generic crime. Id.; United

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States v. Caceres-Olla, 738 F.3d 1051, 1054 (9th Cir. 2013).

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Certain crimes, however, are not suitable for the formal categorical approach because

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their elements encompass multiple generic offenses. See Nijhawan v. Holder, 557 U.S. 29, 35

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(2009) (for example, formal categorical approach not suitable for a statute that prohibits a

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nighttime breaking and entering into a “building, ship, vessel, or vehicle”). These statutes are

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considered “divisible.” A statute is not divisible solely because it is listed in the disjunctive.

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United States v. Dixon, 805 F.3d 1193, 1198 (9th Cir. 2015). Rather, a disjunctive statute must

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create “alternative elements” as opposed to merely “alternative means.” Id. Alternative elements

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are essential to the jury’s guilty verdict, but alternative means are not. Id.
If the statute is truly divisible, it will be impossible to tell which of its compound offenses

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the defendant committed without considering the underlying facts. Descamps, 570 U.S. at 263.

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But the formal categorical approach expressly prohibits considering the facts of the underlying

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offense. Taylor v. United States, 495 U.S. 575, 600 (1990). Enter the modified categorical

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approach, which allows the Court to consult a limited library of documents to determine which

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of the divisible statute’s offenses the defendant committed. Id. at 257. The library may include

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the indictment, jury instructions, plea agreement, or plea colloquy that sheds light on which of

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the statute’s elements the defendant violated. See United States v. Martinez-Lopez, 864 F.3d

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1034, 1043 (9th Cir. 2017). The Court’s objective under the modified categorical approach

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remains the same: to compare the elements of the underlying offense with the elements of the

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generic crime.

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The Ninth Circuit has indicated that completed Hobbs Act robbery is indeed a crime of

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violence under § 924(c)’s elements clause. United States v. Howard, 650 Fed. Appx. 466, 468

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(9th Cir. May 23, 2016) (unpublished). Howard confronted a similar argument to the one Balva

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presents here, that Hobbs Act robbery is not a crime of violence under the elements clause

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because it does not necessarily involve “the use, attempted use, or threatened use of physical

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force.” 650 Fed. Appx. at 468. In other words because Hobbs Act robbery could conceivably be

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accomplished by merely putting someone in fear of injury, it does not meet § 924(c)(3)(A)’s

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definition. The Ninth Circuit rejected the argument. Comparing Hobbs Act robbery to an

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analogous federal bank robbery statute, the Court determined that taking property under threat of

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intimidation satisfies the crime of violence requirement of “threatened use of physical force.” Id.

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As a result, Hobbs Act robbery “by means of fear of injury also qualifies as a crime of violence.”

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Id. (internal quotations omitted).

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At least two courts in this district have followed Howard’s lead and found that Hobbs Act

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robbery is a crime of violence using the modified categorical approach. See United States v.

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Haas, No. 2:10-cr-0499-LRH-GWF, 2019 WL 4859066 (D. Nev. Oct. 1, 2019); United States v.

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Harrison-Johnson, No. 2:12-cr-0336-JAD-CWH, 2018 WL 3518448 (D. Nev. July 19, 2018).

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Harrison-Johnson determined, and Haas agreed, that the Hobbs Act is a divisible statute because

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it “contains disjunctive phrases that essentially create six functionally separate crimes.” 2018

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WL 3518448 at *3. Because the statute is divisible, the Court may apply the modified categorical

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approach and look to the limited library of documents that shed light on the defendant’s

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underlying conviction.

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The Court need not look further than the plea agreement to determine that Balva’s

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underlying Hobbs Act robbery was a crime of violence. The first element of Hobbs Act robbery

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is that Balva induced an employee or business to part with property using actual or threatened

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force, violence, or fear. Plea Agreement at 3 (citing Ninth Cir. Model Jury Inst. 8.142). Balva

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admitted that he forced several convenience-store clerks to part with cash while he pointed a

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silver handgun at them. During one of the robberies, Balva told the clerk “this is a real gun with

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real bullets and I’m not playing.” Id. at 5. None of the store clerks would have surrendered their

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cash without being placed in fear of physical violence. As a result, Balva’s underlying Hobbs

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Act robbery conviction is indeed a crime of violence under § 924(c)’s elements clause, and his

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conviction and resulting sentence are constitutional.

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C. Certificate of Appealability

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Having denied Balva’s petition, the Court turns to whether to grant a certificate of

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appealability. A certificate of appealability enables a § 2255 petitioner to pursue appellate review

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of a final order. It is only available where the petitioner has “made a substantial showing” of a

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constitutional deprivation in his § 2255 petition. 28 U.S.C. § 2253(c)(2); Welch v. United States,

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136 S.Ct. 1257, 1263 (2016). A petitioner has made a substantial showing of a constitutional

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violation if reasonable jurists could disagree whether he has suffered such a deprivation. Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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Balva does not warrant a certificate of appealability. The Ninth Circuit has determined

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that Hobbs Act robbery indeed qualifies as a crime of violence under § 924(c)’s elements clause.

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See United States v. Howard, 650 Fed. Appx. 466, 468 (9th Cir. May 23, 2016) (unpublished).

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Because Davis only invalidated § 924(c)’s residual clause, it does not change the analysis.

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Alternatively, the Hobbs Act is a divisible statute that is subject to the modified categorical

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approach. Reasonable jurists would not disagree that Balva’s string of armed robberies qualify as

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a crime of violence. Therefore, the Court denies a certificate of appealability.

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that defendant/petitioner Shawn Michael

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Balva’s Motion to Vacate or Set Aside His Sentence under 28 U.S.C § 2255 (ECF No. 40) is

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DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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The Clerk of Court is directed to ENTER JUDGMENT in favor of the United States.

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Dated this 13th day of April, 2020.

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_____________________________
Kent J. Dawson
United States District Judge

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