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United States v. Springer

United States District Court, D. Nevada

May 21, 2018

UNITED STATES OF AMERICA, Plaintiffs,
v.
CALVIN SPRINGER, Defendants.

          ORDER

         Presently 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. 380, 405).

         Also before the court is the government's motion to dismiss for lack of jurisdiction. (ECF No. 379).

         I. Facts

         In 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[1] granted on June 17, 1993. (ECF Nos. 121, 133).

         On 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.

         On 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. 260).

         On July 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).

         On 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).

         On 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).

         On February 17, 2017, the Ninth Circuit filed an order authorizing petitioner's § 2255 motion to proceed. (ECF No. 401).

         In his 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.[2] (ECF No. 377). The government filed a motion to dismiss for lack of jurisdiction. (ECF No. 379).

         II. Legal Standard

         Federal 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).

         Limitations 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).

         III. Discussion

         As an 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.

         In the 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).

         In 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 ...

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