United States District Court, D. Nevada
before the court is petitioner Allen D. Nye's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. (ECF Nos. 160, 161). The government filed a
response (ECF Nos. 163, 164),  to which petitioner replied (ECF
November 15, 2006, petitioner pleaded guilty to count three
of the superseding indictment, charging petitioner with felon
in possession of a firearm under 18 U.S.C. § 922(g)(1).
(ECF No. 43). On September 17, 2007, the court sentenced
petitioner to 180 months, followed by 60 months supervised
release. (ECF No. 85). Petitioner was advised of his rights
to file an appeal. (ECF No. 85). Judgment was entered on
October 12, 2007. (ECF No. 92).
September 18, 2007, petitioner filed a notice of appeal. (ECF
No. 86). On December II, 2008, the Ninth Circuit entered a
memorandum affirming the court's decision. (ECF No. 105).
The order on mandate was entered on December 17, 2008. (ECF
instant motion, petitioner moves to vacate pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson”). (ECF Nos. 160, 161).
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).
initial matter, petitioner's motion to expedite a
scheduling order (ECF No. 168) will be denied as moot. The
court has already issued a scheduling order (see ECF
No. 162) as to the underlying motions (ECF Nos. 160, 161).
Further, the court will deny petitioner's motion for
leave to file supplemental authority (ECF No. 169) as
petitioner seeks to brief a non-binding decision.
Furthermore, the court construes petitioner's notice (ECF
No. 166) as a notice and not a motion.
instant motion, petitioner argues that under
Johnson, he does not qualify as an armed career
criminal and that his current sentence violates due process
of law. (ECF No. 160). Petitioner asserts that the following
convictions were used to categorize him as an armed career
criminal under the Armed Career Criminal Act of 1984
(“ACCA”): his underlying offense of felon in
possession pursuant to 18 U.S.C. § 922(g)(1); his three
prior Nevada burglary convictions pursuant to NRS 205.060;
and his prior Nevada robbery with use of a deadly weapon
conviction pursuant to NRS 200.380 and NRS 193.165. (ECF No.
160 at 3). Petitioner maintains that the court should grant
the instant motion and immediately order his release from
prison. (ECF No. 160).
response, the government contends that Johnson is
inapplicable here. Specifically, the government contends that
Johnson invalidated the language of the ACCA apply
its enhanced penalty to conduct “otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” (ECF No. 163 at 7). The government
asserts that Johnson did not invalidate the
application to “burglary.” (ECF No. 163 at 7).
The government further asserts that the Ninth Circuit, in its
memorandum affirming the court's decision (ECF No. 105),
found that petitioner's prior burglary convictions fell
within the ACCA's definition of burglary. (ECF No. 163 at
7). The court agrees.
Johnson, 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 ...