United States District Court, D. Nevada
before the court is petitioner Jeffrey Michael Donnelly's
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255. (ECF No. 42). The government filed a
response (ECF No. 44), to which petitioner replied (ECF No.
before the court is the government's motion for leave to
advise the court of relevant new authority. (ECF No.
December 22, 2004, petitioner pleaded guilty (without a plea
agreement) to one count of felon in possession of a firearm
under 18 U.S.C. § 922(g)(1). (ECF No. 27). The PSR
calculated petitioner's guideline range as 188 to 235
months and recommended a sentence of 235 months. (PSR at 85,
April 7, 2005, the court sentenced petitioner to 188 months
in custody (low end of the guideline range), followed by five
(5) years supervised release. (ECF No. 34). Petitioner was
advised of his rights to file an appeal. (ECF No. 34). The
court entered judgment on April 18, 2005. (ECF No. 36).
instant motion, petitioner moves to vacate the sentencing
enhancement applied to his sentence pursuant to Johnson
v. United States, 135 S.Ct. 2551 (2015)
(“Johnson”), and requests that the court
resentence him to 57 months. (ECF No. 42).
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 57 months. (ECF No. 42). In particular,
petitioner argues that his three prior Florida convictions
for aggravated assault, robbery, and armed robbery no longer
qualify as “violent felonies” for purposes of the
fifteen (15) year mandatory minimum sentence under the Armed
Career Criminal Act of 1984 (“ACCA”). (ECF No. 42
court disagrees. In Johnson, the United States
Supreme Court held the residual clause in the definition of a
“violent felony” in the 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 ...