United States District Court, D. Nevada
before the court is petitioner Lance Grandberry's
abridged motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. (ECF No. 167).
before the court is petitioner's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 171). The government filed a response (ECF No. 177),
to which petitioner replied (ECF No. 178). Per the
court's order lifting the stay on this case and allowing
supplemental briefing (ECF No. 186), the government has also
filed a supplemental brief with respect to petitioner's
motion to vacate, set aside, or correct sentence (ECF No.
187). Petitioner filed a response to the supplemental brief
(ECF No. 189), to which the government replied (ECF No. 190).
January 14, 2008, petitioner pleaded guilty to one count of
interference with commerce by robbery (18 U.S.C. § 1951)
(“Hobbs Act robbery”) and one count of
discharging a firearm in the course of a robbery affecting
interstate commerce (18 U.S.C. § 924(c)). (ECF No. 66).
April 21, 2008, the court sentenced petitioner to ninety-six
(96) months imprisonment for the Hobbs Act robbery
conviction. (ECF No. 82). The court also sentenced petitioner
to one hundred twenty (120) months imprisonment for the
§ 924(c) conviction, to run consecutively. Id.
This resulted in a combined imprisonment term of two hundred
sixteen (216) months. Id. The court entered judgment
on April 24, 2018. (ECF No. 84). Petitioner did not appeal
instant motions, petitioner moves to vacate his conviction
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015) (“Johnson”). (ECF No. 171).
Petitioner also requests that the court immediately release
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). § 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
allegedly erroneous convictions pursuant to Johnson.
(ECF No. 171). In particular, petitioner argues that the
§ 924(c) conviction violates the Constitution's
guarantee of due process. Id.
Johnson, the United States Supreme Court held that
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”), is
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 ...