Hall v. United States

• Court: District Court, D. Nevada
• Decided: January 22, 2021
• Docket: 2:20-cv-01062
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 United States of America, Case No.: 2:16-cr-00321-JAD-GWF

4 Plaintiff

5 v. Order Denying Motion to Vacate § 924(c) Conviction under U.S. v. Davis 6 Bailey Aaron Hall, [ECF No. 82] 7 Defendant

8 Bailey Aaron Hall was convicted of interference with commerce by robbery under the 9 Hobbs Act1 and brandishing a firearm during a crime of violence in violation of 18 U.S.C. 10 § 924(c)(1)(A) after pleading guilty to a string of armed robberies of fast-food joints and a 11 convenience store.2 At the time of Hall’s conviction, the statute offered two ways for an 12 underlying offense to qualify as “a crime of violence,” but a month later the United States 13 Supreme Court struck down one of them as unconstitutionally vague in United States v. Davis.3 14 Hall now moves this court to vacate his firearm conviction under Davis.4 Because the Ninth 15 Circuit has since reaffirmed that Hobbs Act robbery is a crime of violence under § 924(c)’s 16 remaining clause, I deny Hall’s motion and a certificate of appealability. 17 18 19 20 21 1 18 U.S.C. § 1951. 22 2 ECF No. 77 (judgment). 23 3 United States v. Davis, 139 S. Ct. 2319, 2336–37 (2019). 4 ECF No. 82 (motion). 1 Background 2 In November 2017, Hall pleaded guilty to three counts of interference with commerce by 3 robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and a single count of brandishing a 4 firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).5 5 Hall waived his right to challenge his sentence on direct appeal or on collateral attack under 18

6 U.S.C. § 2255, reserving only his right to appeal any upward departure from his sentencing- 7 guideline range.6 I sentenced Hall in May 2019 to a total of 180 months in custody (a 96-month 8 concurrent sentence for the robbery counts, plus an 84-month consecutive sentence for the 9 firearm count), a within-guidelines sentence.7 Hall did not appeal, but he now moves under 28 10 U.S.C. § 2255 to vacate his conviction and sentence for the firearm count. 11 Section 924(c) of Title 18 of the U.S. Code carries heightened criminal penalties8 for 12 defendants who use, carry, or possess a firearm during and in relation to a “crime of violence.” 13 The statute defines “crime of violence” in two subsections. Section 924(c)(3)(A), commonly 14 known as the “elements clause,” defines a crime of violence to include a felony that “has as an

15 element the use, attempted use, or threatened use of physical force against the person or property 16 of another.”9 Alternatively, § 924(c)(3)(B), known as the “residual clause,” includes any felony 17 “that[,] by its nature, involves a substantial risk that physical force against the person or property 18

19 5 ECF No. 14 (criminal indictment); ECF No. 43 at 2 (plea agreement). 6 Id. at 13. 20 7 ECF Nos. 74; 77. 21 8 See Davis, 139 S. Ct. at 2324 (explaining that “[v]iolators of § 924(c) face a mandatory minimum sentence of five years in prison, over and above any sentence they receive for the 22 underlying crime of violence or drug trafficking crime,” seven years for brandishing the firearm, and ten years for a discharge, plus other enhancements based on the firearm model and repeat 23 violations). 9 18 U.S.C. § 924(c)(3)(A). 1 of another may be used in the course of committing the offense.”10 Neither Hall’s indictment nor 2 his plea agreement specifies whether his underlying offense—Hobbs Act robbery—qualified as a 3 crime of violence under the elements clause or the residual clause.11 4 In June 2019, the Supreme Court held in United States v. Davis that the residual clause’s 5 crime-of-violence definition is unconstitutionally vague, and it remanded the case to allow the

6 lower courts to determine “exactly what that holding mean[t]” for the Davis defendants’ Hobbs 7 Act robbery, Hobbs Act conspiracy, and firearms convictions and sentences.12 Hall contends 8 that his § 924(c) conviction must be vacated because, under Davis, Hobbs Act robbery no longer 9 qualifies as a crime of violence at all.13 The government opposes his motion, arguing that Hall’s 10 challenge is procedurally defaulted, waived, and fails on its merits because the Ninth Circuit held 11 in United States v. Dominguez14 that Hobbs Act robbery remains a crime of violence under the 12 elements clause of § 924(c).15 I consider each argument in turn.16 13 14

15 16 17 10 Id. at § 924(c)(3)(B). 18 11 See generally ECF Nos. 14, 43. 19 12 Davis, 139 S. Ct. at 2336. 13 ECF No. 82. 20 14 United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020). 21 15 ECF No. 84. 16 Hall argues that his habeas petition is timely because Davis announced a new rule that alters 22 the range of conduct and class of persons that can be punished under § 924(c). ECF No. 82 at 4. Because the government does not dispute this point, I assume without deciding that the petition 23 is timely, and I deny it for other reasons. I also find that this motion is suitable for disposition without a hearing because Ninth Circuit authority clearly precludes relief. 1 Discussion 2 I. Hall didn’t waive this collateral challenge. 3 The government contends that Hall waived his right to lodge this Davis challenge 4 because his written plea agreement contains a waiver of the right to collaterally attack his 5 sentence.17 Hall responds that this § 2255 motion is properly before this court despite that

6 waiver because “a plea waiver cannot be enforced when the sentence” is based on a provision the 7 Supreme Court has determined is unconstitutional.18 “A sentence is illegal if it . . . violates the 8 Constitution.”19 Because Hall argues that Davis invalidated his § 924(c) conviction based on 9 unconstitutional vagueness, his plea waiver doesn’t bar this motion. 10 II. Hall procedurally defaulted his claim for relief. 11 Though the waiver in Hall’s written plea agreement may not be an obstacle to his motion, 12 Hall’s failure to raise this challenge on direct appeal is. A defendant who fails to raise a claim on 13 direct review is deemed to have procedurally defaulted it and may only raise it in habeas if he 14 can demonstrate cause and actual prejudice or actual innocence.20 The government argues that

15 Hall isn’t entitled to relief because he didn’t raise his claims in a direct appeal and has therefore 16 procedurally defaulted his claim that his § 924(c) conviction is invalid for lack of a qualifying 17 predicate offense.21 It also argues that Hall can’t show cause or prejudice to excuse his 18 procedural default.22 Hall responds that the procedural-default rule doesn’t apply here because 19

20 17 ECF No. 84 at 9. 21 18 ECF No. 82 at 5. 19 United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). 22 20 Bousley v. United States, 523 U.S. 614, 622 (9th Cir. 1998) (citations omitted). 23 21 ECF No. 84 at 4. 22 Id. 1 the court lacked jurisdiction to convict him because the government failed to make out a federal 2 offense.23 Alternatively, he argues that his default is excused because Davis announced a new, 3 retroactive rule that constitutes cause and establishes his prejudice.24 4 A. Hall cannot rely on a jurisdictional defect. 5 Hall argues that his claim is exempt from the procedural-default rule because it ultimately

6 challenges this court’s jurisdiction. He cites United States v. Montilla25 for the proposition that 7 his claim challenges the constitutionality of applying the Hobbs Act to § 924(c) and that the 8 indictment fails to state an offense.26 The Ninth Circuit’s holding in United States v. Chavez- 9 Diaz27 forecloses this argument. In Chavez-Diaz, the court explained that the jurisdictional 10 exception “applies ‘where on the face of the record the court had no power to enter the 11 conviction or impose the sentence.’”28 Thus, these limited challenges are predicated on 12 scenarios “where [an] appeal, if successful, would mean that the government cannot prosecute 13 the defendant at all.”29 Hall’s challenge does not raise a jurisdictional defect excused from the 14 procedural-default rule because he doesn’t argue that the government lacked the power to

15 prosecute him for these acts or that Congress lacked the power to pass either statute.30 16 17 18

23 ECF No. 85 at 3. 19 24 Id. at 5–7. 20 25 United States v. Montilla, 870 F.2d 549 (9th Cir. 1989). 21 26 ECF No. 85 at 4. 27 United States v. Chavez-Diaz, 949 F.3d 1202, 1208 (9th Cir. 2020). 22 28 Id. (citing United States v. Broce, 488 U.S. 563, 569 (1989)). 23 29 Id. (citation omitted) (emphasis in original). 30 See id. at 1208–09. 1 B. Hall can’t show cause to excuse his procedural default. 2 Hall can’t establish cause to excuse his procedural default. A defendant fails to meet his 3 burden to show that his claim wasn’t “reasonably available to counsel” when, at the time of his 4 plea, “the Federal Reporters were replete with cases involving [similar] challenges.”31 Davis 5 itself confirms that the vagueness challenge to the residual clause was heavily litigated “among

6 the lower courts”32 during the pendency of Hall’s prosecution, and this district was no 7 exception.33 It is of no consequence that the argument would not have been successful at the 8 time. As the Supreme Court reiterated in Bousley v. United States, “futility cannot constitute 9 cause if it means simply that a claim was unacceptable to that particular court at that particular 10 time.”34 11 C. Hall cannot establish prejudice.

12 Even if Hall could show cause, he cannot establish prejudice because Hobbs Act robbery 13 remains a crime of violence in this circuit under the elements clause. Davis held only that 14 § 924(c)’s residual clause is unconstitutionally vague. After Davis, courts have been confronted 15 with the question of whether a Hobbs Act conviction can stand under the remaining elements 16 clause. The Ninth Circuit answered that question with an emphatic “yes” in United States v. 17 Dominguez: “In light of recent Supreme Court cases, we . . . reiterate our previous holding that 18 Hobbs Act armed robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A).”35 19 20 31 Bousley, 523 U.S. at 622. 21 32 Davis, 139 S. Ct. at 2325. 22 33 See ECF No. 84 at 6–7 (collecting cases). 34 Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks omitted) (quoting 23 Engle v. Isacc, 456 U.S. 107, 130 n.35 (1982)). 35 United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir., Apr. 7, 2020). 1 Hall argues that I shouldn’t rely on Dominguez because it’s not a final decision—the 2 appellant in that case moved for reconsideration and may still seek certiorari.36 But 3 reconsideration was denied,37 and the potential to petition for Supreme Court review does not 4 allow me to avoid the Dominguez panel’s holding. “[O]nce a federal circuit court issues a 5 decision, the district courts within that circuit are bound to follow it and have no authority to

6 await a ruling by the Supreme Court before applying the circuit court’s decision as binding 7 authority.”38 Because Dominguez is the law of this circuit, this court is bound by it,39 and I 8 decline Hall’s invitation to ignore it. That holding renders Hall unable to establish actual 9 prejudice because, even if the residual clause no longer makes Hobbs Act robbery a crime of 10 violence, the elements clause still does. Hall thus cannot establish prejudice to excuse his 11 procedural default. And even if this claim were not defaulted, I would deny Hall’s petition on its 12 merits because his § 924(c) conviction remains valid under the elements clause and binding 13 Ninth Circuit law. 14 Conclusion

15 IT IS THEREFORE ORDERED that Hall’s motion to vacate under 28 U.S.C. § 2255 16 [ECF No. 82] is DENIED. And because reasonable jurists would not find this determination 17 18 36 ECF No. 82 at 7–8. 19 37 See United States v. Dominguez, No. 14-10268 (petition for rehearing and for rehearing en 20 banc denied 8/24/2020; mandate issued 9/1/2020). 38 Yong v. I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000). 21 39 In re Zermeno-Gomez, 868 F.3d 1048, 1052 (9th Cir. 2017) (“Under our law of the circuit doctrine, a published decision of this court constitutes binding authority which must be followed 22 unless and until overruled by a body competent to do so.” (internal quotations omitted)). See also United States v. Tuan Ngoc Luong, 965 F.3d 973, 990 (9th Cir., July 17, 2020) (“For the 23 same reasons as those set forth in Dominguez, we hold Hobbs Act robbery constitutes a predicate crime of violence, and therefore affirm Luong’s conviction on count 2.”). 1|| debatable, wrong, or deserving of encouragement to proceed further,”° a certificate of 2|| appealability is DENIED. The Clerk of Court is DIRECTED to enter a separate civil 3] judgment denying Hall’s § 2255 petition and denying a certificate of appealability. The 4! Clerk must also file this order and the civil judgment in this case and in the related civil case: 5|| 2:20-cv-01062-JAD. rs U.S. District Judgetennifer ix, Dorsey 7 January 22, 2021 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 49 98 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).