United States District Court, D. Nevada
before the court is petitioner Paul Luther Dix's motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255. (ECF No. 62).
August 8, 2014, petitioner pleaded guilty to one count of
felon in possession of a firearm under 18 U.S.C. §
922(g)(1) and 924(a)(2). (ECF No. 33). In the plea agreement,
petitioner knowingly and expressly waived, inter
alia, "all collateral challenges, including any
claims under 28 U.S.C. § 2255, to his conviction,
sentence and the procedure by which the Court adjudicated
guilt and imposed sentence, except non-waivable claims of
ineffective assistance of counsel." (ECF No. 34 at
January 12, 2015, the court sentenced petitioner to 83 months
in custody to run concurrently with petitioner's state
sentence, followed by three (3) years supervised release.
(ECF No. 39). Petitioner was advised of his rights to file an
appeal. (ECF No. 39). The court entered judgment on January
13, 2015. (ECF No. 40).
instant motion, petitioner moves to vacate the sentencing
enhancement applied to his sentence pursuant to Johnson
v. United States, 135 S.Ct. 2551 (2015), and requests
that the court resentence him to 20 months. (ECF No. 62).
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States . . . .” 28 U.S.C. § 2255(a).
Section 2255 relief should be granted only where “a
fundamental defect” caused “a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 345 (1974); see also Hill v.
United States, 368 U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not he
took advantage of the opportunity. United States v.
Frady, 456 U.S. 152, 164 (1982). Section 2255 “is
not designed to provide criminal defendants multiple
opportunities to challenge their sentence.” United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
instant motion, petitioner requests that the court vacate his
erroneous sentencing enhancement pursuant to Johnson
and resentence him to 20 months. (ECF No. 62). In particular,
petitioner argues that his sentence violates due process of
law and that under Johnson, he does not qualify for
the United States Sentencing Guideline (“USSG”)
§ 2K2.1 sentencing enhancement. (ECF No. 62 at 3).
Petitioner asserts that his sentence was based on a finding
that his prior convictions qualified as “crimes of
violence” under USSG § 4B1.2(a), which in turn
resulted in an increased base level under § 2K2.1(a)(2).
(ECF No. 62 at 3).
court disagrees. In Johnson v. United States, the
United States Supreme Court held the residual clause in the
definition of a “violent felony” in the Armed
Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)
(“ACCA”), to be unconstitutionally vague. 135
S.Ct. at 2557. In particular, the Supreme Court held that
“increasing a defendant's sentence under the clause
denies due process of law.” Id. The ACCA
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; 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.
18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing
words emphasized above have come to be known as the
ACCA's “residual ...