United States District Court, D. Nevada
M. Navarro Chief Judge United States District Court
before the Court is Petitioner Johnnie Ray Burkholder's
(“Petitioner's”) Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF No. 52), to which
Respondent United States of America (the
“Government”) filed a Response, (ECF No. 62). For
the reasons discussed below, Petitioner's 2255 Motion is
December 3, 2012, Petitioner pleaded guilty to one count of
federal bank robbery in violation of 18 US.C. § 2113(a).
(Plea Agreement, ECF No. 24); (Mins. Proceedings, ECF No.
23). The Court accordingly sentencing Petitioner to a term of
151 months imprisonment. (J., ECF No. 32).
September 29, 2014, Petitioner filed his first Motion to
Vacate Sentence pursuant to 28 U.S.C. § 2255, which
asserted four grounds for relief: (1) Petitioner's
counsel failed to file an appeal; (2) the presentence report
from the United States Probation Office had inaccurate
information; (3) the Court did not apply a downward departure
due to diminished health or mental capacity; and (4) unlawful
application of the United States Sentencing Guidelines. (Mot.
Vacate at 5-7, ECF No. 42). The Court denied Petitioner's
Motion to Vacate Sentence on December 29, 2014. (Order, ECF
6, 2016, Petitioner filed the instant 2255 Motion with the
Court; and Petitioner received approval from the Ninth
Circuit Court of Appeals to proceed with the 2255 Motion as a
“second or successive 28 U.S.C. § 2255
motion” on February 16, 2017. (USCA Order, ECF No. 59).
28 U.S.C. § 2255, a petitioner may file a motion
requesting the Court which imposed the sentence to vacate,
set aside, or correct the sentence. See 28 U.S.C.
§ 2255(a). Such a motion may be brought on the following
grounds: “(1) the sentence was imposed in violation of
the Constitution or laws of the United States; (2) the court
was without jurisdiction to impose the sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral
attack.” Id.; see United States v.
Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). Motions
pursuant to § 2255 must be filed within one year from
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1).
second motion pursuant to 28 U.S.C. § 2255 can only
proceed with approval from the court of appeals for the
circuit of the district court that imposed the sentence.
See 28 U.S.C. § 2255(h). “[O]nce the bar
to considering a second or successive petition or motion has
been overcome, the analysis of the merits is the same as if
the petitioner were bringing a first petition or
motion.” United States v. Geozos, 870 F.3d
890, 895 (9th Cir. 2017).
2255 Motion, Petitioner argues that the sentence of 151
months violates due process because the Court imposed it
under an unconstitutionally vague portion of the United
States Sentencing Guidelines (U.S.S.G.)-specifically,
U.S.S.G. § 4B1.2, known as the residual clause. (2255
Motion 2:2-7, ECF No. 52). Petitioner's vagueness
argument relies on Johnson v. United States, 135
S.Ct. 2551 (2015). In Johnson, the U.S. Supreme
Court ruled that the residual clause of the Armed Career
Criminal Act (ACCA) was unconstitutionally vague.
Johnson, 135 S.Ct. at 2557. Petitioner accordingly
points to the language in U.S.S.G § 4B1.2's residual
clause, which is identical to the ACCA's residual clause,
for the proposition that the statutory provisions, and any
sentences imposed under them, are invalid. (Id.
the U.S. Supreme Court's later decision in Beckles v.
United States, 137 S.Ct. 886 (2017), forecloses
Petitioner's argument. In Beckles, the U.S.
Supreme Court ruled that the United States Sentencing
Guidelines are not subject to void-for-vagueness challenges.
Beckles, 137 S.Ct. 886, 894 (2017) (“Unlike
the ACCA, however, the advisory guidelines do not fix the
permissible range of sentences. . . . Accordingly, the
Guidelines are not subject to vagueness challenge under the
Due Process Clause”). Thus, Petitioner has no basis for
relief under Johnson.
the Court will not issue a certificate of appealability,
which is required for Petitioner to proceed with an appeal of
this Order. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22;
9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946,
950-51 (9th Cir. 2006). Generally, a petitioner must make
“a substantial showing of the denial of a
constitutional right” to warrant a certificate of
appealability. 28 U.S.C. § 2253(c)(2). “The
petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.”
Ornoski, 435 F.3d at 951 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). In order to meet
this threshold inquiry, Petitioner has the burden of
demonstrating that the issues are debatable among jurists of
reason, a court could resolve the issues differently, or the
questions are adequate to deserve encouragement to proceed
Court has considered the issues raised by Petitioner, with
respect to whether they satisfy the standard for issuance of
a certificate of appealability. The Court finds that none of
the issues in Petitioner's 2255 Motion meet that