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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES

v.

RICHARD BALLARD

CRIMINAL ACTION

NO. 03-810

DuBois, J. July 7, 2017

M E M O R A N D U M

This Court must determine if Richard Ballard’s prior convictions still serve as predicate 

offenses under the Armed Career Criminal Act (“ACCA”) in the wake of the United States 

Supreme Court’s invalidation of ACCA’s residual clause in Johnson v. United States, 135 S. Ct.

2551 (2015), and clarification on the categorical approach in Mathis v. United States, 136 S. Ct. 

2243 (2016). In 2006, the Court sentenced Ballard to a term of imprisonment of 180 months, the 

mandatory minimum required by ACCA. Ballard’s classification as an armed career offender 

was based on three Pennsylvania state law convictions, two for first-degree robbery in 1975 and 

one for drug trafficking in 1986. 

Ballard, now in his sixties and on supervised release, moves to correct his sentence 

pursuant to 28 U.S.C. § 2255. The Government contends that, because the Court makes this 

determination on collateral review, Ballard bears the burden of showing that he was sentenced 

under the invalidated residual clause or that his sentence constitutes a miscarriage of justice. 

The Court rejects those arguments. For the reasons that follow, the Court grants Ballard’s 

Motion to Correct Sentence under 28 U.S.C. § 2255 and concludes that he is entitled to a 

resentencing. 
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I. BACKGROUND

At the age of eighteen, in 1975, Ballard pled guilty to two violations of Pennsylvania’s 

first-degree robbery statute, 18 Pa. C.S.A. § 3701(a)(1)(i)-(iii). In 1986, Ballard was arrested 

and charged with possession with intent to distribute a controlled substance and subsequently 

pled guilty to that offense. 

Two decades later, on September 2, 2004, Ballard pled guilty to one count of possession 

of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); one count of possession

of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) 

and 924(e); and one count of possession of a firearm in furtherance of a drug trafficking crime in 

violation of 18 U.S.C. § 924(c)(1). Two weeks later, on September 16, 2004, Ballard filed a 

Motion to Withdraw Guilty Plea (Doc. No. 41). By Memorandum and Order dated July 18, 

2005, this Court granted that Motion as to the count for possession of a firearm in furtherance of 

a drug trafficking crime. 

On March 23, 2006, this Court sentenced Ballard on the remaining two counts of the 

Indictment. Ballard’s three prior convictions, two for first-degree robbery and one for drug 

possession, qualified him as an armed career criminal under ACCA. Ballard was sentenced to 

the statutory mandatory minimum of 180 months imprisonment on the § 922(g) count, and a 

concurrent term of 180 months imprisonment on the § 841(a)(1) count. Ballard also received a 

five-year period of supervised release on the § 922(g) count, and a concurrent six-year period of 

supervised release on the § 841(a)(1) count.

On June 15, 2016, Ballard filed a Motion to Correct Sentence under 28 U.S.C. § 2255 

(Doc. No. 135). The United States Court of Appeals for the Third Circuit granted Ballard’s 

application under 28 U.S.C. §§ 2244 and 2255 to file a second or successive § 2255 motion on 
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October 21, 2016, because he presented a prima facie showing that his Motion relied on a new 

rule of constitutional law made retroactive on collateral review. Ballard’s Motion under § 2255 

is now fully briefed and ripe for review.1 

II. APPLICABLE LAW

In reviewing Ballard’s Motion, this Court must resolve two questions. First, would 

Ballard’s convictions for first-degree robbery under Pennsylvania law qualify as predicate 

offenses for ACCA if this were a sentencing proceeding? If the Court determines that they

would not qualify as predicate offenses at sentencing, the Court must answer a second question: 

does the nature of collateral review alter that first determination?

Under ACCA, an individual who violates § 922(g) and who has three or more prior

convictions for a “serious drug offense” or a “violent felony” is subject to an enhanced penalty—

a mandatory minimum term of imprisonment of 15 years and a maximum term of imprisonment 

of life. 18 U.S.C. § 924(e)(1). The Act defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year . . . that—

(i) has as an element the use, attempted use, or threatened use of physical force 

against the person of another [“force clause”]; 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). The italicized language in the Act’s definition is known as the 

“residual clause.” In 2015, the Supreme Court held that the residual clause was 

unconstitutionally vague, reasoning that “[i]nvoking so shapeless a provision to condemn 

someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due 

process.” Johnson, 135 S.Ct. at 2560. In 2016, that decision was held to be a new substantive 

 

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The parties agreed that an evidentiary hearing was not required in this case because the issues 

presented are solely issues of law.
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rule of law with retroactive effect on collateral review. Welch v. United States, 136 S. Ct. 1257, 

1268 (2016). 

Based on the ruling in Welch, this Court must determine whether Pennsylvania’s firstdegree robbery statute qualifies under the “force clause” of Johnson, specifically whether it “has 

an element the use, attempted use, or threatened use of physical force against the person of 

another.” In doing so, this Court is required to utilize the categorical approach, as clarified in 

Mathis.

The Pennsylvania first-degree robbery statute states, in relevant part:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious 

bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second 

degree . . . 

The Government concedes, as it must in light of Johnson v. United States, 559 U.S. 133 (2010), 

that § 3701(a)(1)(iii) does “not necessarily involve the requisite use of force under ACCA.” 

Gov’t. Resp. at 8. 

III. DISCUSSION

The Court first addresses whether Ballard’s convictions for first-degree robbery would 

qualify as predicate offenses under ACCA’s force clause at a sentencing proceeding. It then 

considers whether the procedural posture of this case changes that analysis.

A. Force Clause Analysis

The Court must first determine if the first-degree robbery statute is divisible in this case. 

If the statute is divisible as the Government contends, the Court may use the modified categorical 
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approach and consult certain documents, referred to as Shepard documents,2in an attempt to 

determine the elements of the committed offense and if those elements satisfy the force clause. 

See Mathis, 136 S. Ct. at 2253-54. If the statute is not divisible, as Ballard contends, the Court 

may only use the categorical approach and assess whether the least culpable conduct under the 

statute, here “commits or threatens immediately to commit any felony of the first or second 

degree,” satisfies the force clause. See id. at 2256-57. 

The Government argues that Pennsylvania’s first-degree robbery statute is divisible. 

While the Court disagrees that § 3701(a)(1)(i)-(iii) is divisible in this case,3it need not engage in 

a lengthy analysis on this issue. Even if the Court accepted the Government’s argument that 

§ 3701(a)(1)(i)-(iii) is divisible, the Court would only be able to utilize the modified categorical 

approach, as clarified in Mathis.

Using the modified categorical approach, the Court may consider the Shepard documents 

to determine “which element [of the offense] played a part in the defendant’s conviction.” 

Mathis, 136 S. Ct. at 2253. The Court is not permitted to look at the facts of the offenses. In this 

case, the only Shepard documents available are the judgments for each of Ballard’s first-degree 

robbery convictions and the Pre-sentence Report (“PSR”) prepared in advance of Ballard’s initial 

sentencing. The judgments for each of Ballard’s convictions reflect only that he pled guilty to 

“Robbery 3701 F1.” Without more detail, the Court is unable to determine the subsection of 

 

2 Under Shepard v. United States, 544 U.S. 13 (2005), district courts may consider “conclusive 

records made or used in adjudicating guilt” and “may inquire as to the ‘terms of the charging 

document, the terms of a plea agreement or transcript of colloquy between judge and defendant” 

in determining if a prior conviction qualifies under ACCA. United States v. Berrios, 354 F. 

App’x 629, 632 (3d Cir. 2009).

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See United States v. Singleton, No. 10-578-1, 2017 WL 1508955 (E.D. Pa. Apr. 26, 2017)

(McHugh, J.) (concluding that the Pennsylvania first-degree robbery statute was not divisible in 

a case where a “peek” at the Shepard documents revealed that all three subsections of the statute 

were charged).
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§ 3701(a)(1)(i)-(iii) under which Ballard was convicted. Similarly, the PSR does not provide a 

subsection of § 3701(a)(1)(i)-(iii) under which Ballard was convicted.

The Court concludes that, even if it adopted the Government’s divisibility argument, it 

could not identify the subsection of the Pennsylvania first-degree robbery statute underlying 

Ballard’s robbery convictions. Because this Court is unable to determine the subsection of the 

statute underlying Ballard’s convictions, it must assume that the convictions could have been 

based on violations of § 3701(a)(iii). As the Government concedes, that subsection does not 

involve the requisite use of force. Thus, Ballard’s two previous robbery convictions would not 

qualify as ACCA predicates if this were a sentencing proceeding.4 

B. Collateral Review

To counter that conclusion, the Government contends that (1) the Court may look at the 

facts of the offense as included in the PSR and (2) Ballard has the burden of proving that he was 

sentenced under the invalidated residual clause or must show a “miscarriage of justice” because 

he is seeking collateral review. The Court considers each argument in turn.

1. Facts of the Offense

The Government contends that this Court may “consider the uncontested facts in the PSR 

and other court records in determining if the offense of conviction was a violent felony under 

ACCA’s force clause” because the Court is making this determination on collateral review. 

Gov’t Resp. at 26. The Court rejects that argument. 

A PSR “can be a Shepard document when the defendant does not object to a factual 

account of a crime therein.” United States v. Doe, 810 F.3d 132, 147 (3d Cir. 2015). The 

 

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In a similar case where a first-degree robbery subsection was not specified in the Shepard

documents, the Government conceded that those robbery convictions would not qualify as 

ACCA predicates if it was a sentencing proceeding. See Singleton, 2017 WL 1508955, at *9.
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Government cites United States v. Siegel, 477 F.3d 87, 93 (3d Cir. 2007) to support its argument 

that the uncontested facts in a PSR may be used to determine if an underlying crime involved the 

use of force. Id. (“We agree, and hold that the facts averred in the PSR acceded to by Siegel 

avoid the ‘collateral trial,’ and ‘judicial factfinding’ preempted by the Court’s holding in 

Shepard.”). However, this Court concludes that the approach used in Siegel does not survive the 

Supreme Court’s ruling in Mathis. In Mathis, the Supreme Court expressly rejected the premise 

that the modified categorical approach allows judges to consider the facts of the underlying 

offense, stating: 

the modified approach serves—and serves solely—as a tool to identify the 

elements of the crime of conviction when a statute’s disjunctive phrasing renders 

one (or more) of them opaque. It is not to be repurposed as a technique for 

discovering whether a defendant’s prior conviction, even though for a too-broad 

crime, rested on facts (or otherwise said, involved means) that also could have 

satisfied the elements of a generic offense. 

136 S. Ct. at 2253. 

The Supreme Court also stated in Mathis that a construction of the ACCA that allowed 

sentencing judges to “go beyond identifying the crime of conviction to explore the manner in 

which the defendant committed that offense” would “raise serious Sixth Amendment concerns.” 

136 S. Ct. at 2252. The logic underlying that holding, particularly that “at trial, and still more at 

plea hearings, [during a prior state proceeding] a defendant may have no incentive to contest 

what does not matter under the law,” id., is relevant at this stage of the proceedings. 

Yet, the Government urges the Court to engage in just that inquiry—considering the facts of 

Ballard’s state convictions—on collateral review. This Court follows the guidance provided in 

Mathis and will not consider the facts of the offenses contained in the PSR.
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2. Burden

The Government also raises two arguments concerning the burden at the collateral review 

stage: (1) the burden rests on Ballard to establish that he was sentenced under the residual clause 

invalidated in Johnson and (2) absent a showing that he was sentenced under the residual clause, 

Ballard must demonstrate that his ACCA sentence was a miscarriage of justice.5 The Court 

rejects both arguments.

First, the Government contends that the burden is on Ballard to show that he was 

sentenced under the residual clause, citing In re Moore, 830 F.3d 1268, 1272-73 (11th Cir. 

2016). In Moore, the United States Court of Appeals for the Eleventh Circuit stated that 

the district court cannot grant relief in a § 2255 proceeding unless the movant 

meets his burden of showing that he is entitled to relief, and in this context the 

movant cannot meet that burden unless he proves that he was sentenced using the 

residual clause and that the use of that clause made a difference in the sentence.

Id. at 1273. Shortly after that decision, a separate panel of the Eleventh Circuit stated, 

referencing the above passage, that “[n]ot only is Moore’s dicta just that—dicta—but it also 

seems quite wrong.” In re Chance, 831 F.3d 1335, 1339 (11th Cir. 2016). In that panel’s 

estimation, the court in Moore was wrong for two reasons: (1) “it implie[d] that the district judge 

deciding [the movant’s] upcoming § 2255 [could] ignore decisions from the Supreme Court that 

were rendered since that time in favor of a foray into a stale record” and (2) “[n]othing in the law 

requires a judge to specify which clause of § 924(c)—residual or elements clause—it relied upon 

in imposing a sentence.” Id. at 1340.

 

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The standard of proof in a § 2255 proceeding is by a preponderance of the evidence. See 

Pazden v. Maurer, 424 F.3d 303, 313 (3d Cir. 2005); United States v. Ayers, 938 F. Supp. 2d 

108, 112 (D.D.C. 2013) (“The petitioner bears the burden of proof under § 2255 and must 

demonstrate his right to relief by a preponderance of the evidence.”). 
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This Court agrees with the Chance court that imposing the burden on a movant to show 

that he or she was sentenced under the residual clause is the wrong approach. Instead, this Court

joins the United States Court of Appeals for the Fourth Circuit and several district courts in 

requiring that Ballard show only that the court may have relied on the residual clause in 

sentencing him. See United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (“We will not 

penalize a movant for a court’s discretionary choice not to specify under which clause of Section 

924(e)(2)(B) an offense qualified as a violent felony. Thus, imposing the burden on movants 

urged by the government in the present case would result in ‘selective application’ of the new 

rule of constitutional law announced in Johnson, violating ‘the principle of treating similarly 

situated defendants the same.’”); see also Singleton, 2017 WL 1508955, at *11; United States v. 

Wolf, No. 04-347-1, 2016 WL 6433151, at *4 (M.D. Pa. Oct. 31, 2016); Thrower v. United 

States, No. 04-0903, 2017 WL 1102871, at *4 (E.D.N.Y. Feb. 13, 2017) (collecting cases). 

Because the record in this case does not show whether Ballard was sentenced under the residual 

clause or the force clause, Ballard has met his burden of showing that the court may have relied 

on the residual clause in sentencing him.

Second, the Government argues that, in the alternative, Ballard must “demonstrate that 

his ACCA sentence was a miscarriage of justice” by showing actual innocence. Gov’t. Resp. at 

24. In support of its contention, the Government cites to Bousley v. United States, 523 U.S. 614 

(1998), and Schlup v. Delo, 513 U.S. 298 (1995). Both cases are inapposite. In those cases, the 

Supreme Court discussed what was necessary to overcome a procedural default. The 

Government alleges no such procedural default in this case. To the extent the Government 

suggests this Court should extend the “miscarriage of justice” requirement beyond procedural 

default cases, the Court declines to do so. This Court will not impose a heightened standard for 
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relief absent precedent from higher courts on this issue or a compelling justification by the 

Government. Neither is present in this case.

IV. CONCLUSION

The Court concludes that Ballard has shown by a preponderance of the evidence that he 

is entitled to a resentencing. Ballard’s Motion to Correct Sentence under 28 U.S.C. § 2255 is 

therefore granted. A new sentencing hearing will be scheduled in due course. Until 

resentencing, the sentence imposed on March 23, 2006, remains in effect.

An appropriate order follows.