United States District Court, D. Nevada
before the court is petitioner Deshawn Walker's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. (ECF No. 183). The government has not filed a
response, and the time for doing so has since passed.
before the court is petitioner's request for status
regarding his motion to vacate. (ECF No. 185).
January 6, 2016, 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); and 3) use of
a firearm during and in relation to a crime of violence
(“use of a firearm”). (ECF No. 85). On March 1,
2016, petitioner pleaded guilty to armed bank robbery in
violation of 18 U.S.C. § 2113(a) and use of a firearm.
1, 2016, the court sentenced petitioner to 12 months for
armed bank robbery and 84 months for use of a firearm to run
consecutively for a total of 96 months. Petitioner did
not appeal his sentence.
instant motion, petitioner moves to vacate pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson”). (ECF No. 183).
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).
instant motion, petitioner requests that the court vacate his
conviction under § 924 pursuant to Johnson.
(ECF No. 183). In particular, petitioner argues that his
conviction under 18 U.S.C. § 924(c)(1)(A)(ii) violates
the Constitution's guarantee of due process. Id.
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 ...