United States District Court, D. Nevada
before the court is petitioner Calvin Springer's motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255. (ECF No. 377). The government filed a
response (ECF No. 402), to which petitioner replied (ECF Nos.
before the court is the government's motion to dismiss
for lack of jurisdiction. (ECF No. 379).
August of 1992, the government brought a superseding
indictment charging the petitioner with: 1) conspiracy to
commit armed bank robbery; 2) armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d); 3) use of a
firearm during and in relation to a crime of violence; 4)
interstate transport of a stolen firearm; 5) receipt of
stolen firearm; 6) felon in possession of a firearm; and 7)
aiding and abetting as to count 2, 3, 4, 5, and 6 in
violation of 18 U.S.C. § 2. (ECF No. 27). On May 13,
1993, the jury found petitioner guilty as to counts 1, 2, 3,
and 7. (ECF No. 121). On May 26, 1993, petitioner filed a
motion requesting a new trial and evidentiary hearing, which
the court granted on June 17, 1993. (ECF Nos. 121,
August 23, 1993, the government appealed the court's
order granting a new trial. (ECF No. 146). On January 3,
1995, the Ninth Circuit reversed the district court's
order granting a new trial. (ECF No. 170). On July 17, 1995,
the court sentenced petitioner to 360 months imprisonment.
The court entered the judgment on the same day. (ECF No.
197). On July 24, 1995, petitioner appealed the judgment.
September 23, 1996, the Ninth Circuit affirmed the conviction
but vacated and remanded petitioner's sentence because
the district court misapplied “the Guidelines by
upwardly departing under application note 2 § 2K2.4
beyond the maximum amount that the section allows.”
(ECF No. 239). On April 14, 1997, petitioner was resentenced
to the previously imposed 360-month sentence. (ECF No. 259).
The court reentered judgment on April 15, 1997. (ECF No.
20, 1998, petitioner filed his first motion for relief under
28 U.S.C. § 2255. (ECF No. 290). The court denied the
motion on December 10, 1998. (ECF No. 297).
August 18, 2006, petitioner filed a motion for relief from
judgment pursuant to Federal Rule of Civil Procedure 60. (ECF
No. 339). This court denied the motion, concluding that it
“must be treated as a successive habeas petition or,
alternatively, as an attempt to circumvent the successive
petition requirements of 28 U.S.C. § 2255 without first
obtaining certification from the Ninth Circuit Court of
Appeals.” (ECF No. 342). On April 28, 2011, petitioner
filed a motion for relief from judgment under 28 U.S.C. Rule
60(b)(6) and 28 U.S.C. § 2255. (ECF No. 346). The court
denied the motion, finding again that it must be treated as a
successive habeas petition, which had not been certified by
the court of appeals. (ECF No. 349).
November 30, 2015, petitioner filed a pro se motion
for relief pursuant to 28 U.S.C. § 2255(f)(3). (ECF No.
371). On December 10, 2015, petitioner filed a counselled,
unopposed motion to stay and hold the motion to vacate in
abeyance for 90 days. (ECF No. 374). On February 10, 2016,
petitioner filed an amended motion to vacate. (ECF No. 377).
February 17, 2017, the Ninth Circuit filed an order
authorizing petitioner's § 2255 motion to proceed.
(ECF No. 401).
instant motion, petitioner moves to vacate pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson”), and requests that the court
immediately release petitioner. (ECF No. 377). The government
filed a motion to dismiss for lack of jurisdiction. (ECF No.
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).
Relief pursuant to § 2255 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, the court will deny the government's
motion to dismiss for lack of jurisdiction as moot in light
of the Ninth Circuit's order authorizing petitioner's
§ 2255 motion to proceed.
instant motion, petitioner requests that the court vacate his
allegedly erroneous conviction and sentencing enhancement
pursuant to Johnson. (ECF No. 377). In particular,
petitioner argues that his sentence violates the
Constitution's guarantee of due process. Further, he
argues that under Johnson, he does not qualify as a
career offender under United States Sentencing Guideline
(“USSG”) § 4B1.1. (ECF No. 377 at 3).
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. 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 ...