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United States v. Lebron

United States District Court, D. Nevada

September 20, 2019

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
DEVALOIS LEBRON, Petitioner/Defendant.

          ORDER

          Gloria M. Navarro, District United States District Judge.

         Pending before the Court is Petitioner Devalois Lebron’s (“Petitioner”) Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“2255 Motion”), (ECF Nos. 48, 51). The Government filed a Response, (ECF No. 53), and Petitioner filed a Reply, (ECF No. 54).

         Also pending before the Court is Petitioner’s Motion to Terminate Counsel and the Appointment of New Counsel, (ECF No. 65). For the reasons discussed below, the Court DENIES Petitioner’s 2255 Motion, and DENIES Petitioner’s Motion to Terminate Counsel and the Appointment of New Counsel.

         I. BACKGROUND

         On March 29, 2010, Petitioner pled guilty to one count of possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). (Mins. Proceedings, ECF No. 21); (J., ECF No. 28). The Court accordingly sentenced Petitioner to a term of 120 months’ imprisonment. (See J.).

         On June 15, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No. 48), followed by a comprehensive 2255 Motion on December 19, 2016, (ECF No. 51). On March 27, 2017, Petitioner filed a notice concerning the U.S. Supreme Court decision in Beckles v. United States, 137 S.Ct. 886 (2017), and requested that the Court defer ruling on the 2255 Motion for thirty days. (Notice 1:18–2:2, ECF No. 55). Petitioner thereafter filed a pro se Motion to Terminate Counsel and for the Appointment of New Counsel, (ECF No. 65). This Order now follows.

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the Court which imposed sentence to vacate, set aside, or correct the sentence. 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).

         III. DISCUSSION

         A. 2255 Motion

         In the 2255 Motion, Petitioner argues that the sentence of 120 months’ imprisonment 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. 51). 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. (See Id . 6:12– 9:2).

         However, 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. As such, the Court will deny Petitioner’s 2255 Motion.

         B. Motion to Terminate Counsel and the Appointment of New Counsel

         In his Motion to Terminate Counsel and the Appointment of New Counsel (“Motion”), (ECF No. 65), Petitioner requests that the Court terminate the Federal Public Defender’s Office, “namely Sunethra Muralidhara and Nisha Brooks-Whittington.” (Mot. at 1, ECF No. 65). Petitioner represents that “[t]here is a difference in strategy and there’s a definite conflict in communication that requires [Petitioner] to terminate their representation of [Petitioner] in these matters.” (Id.). Petitioner further requests that the Court “allow [Petitioner] to utilize an attorney under the Criminal Justice Act (CJA) panel . . . to handle [Petitioner’s] legal affairs from this point on.” (Id.). Subsequent to the filing of Petitioner’s Motion, Assistant Federal Public Defenders Sunethra Muralidhara and Nisha Brooks-Whittington withdrew from Petitioner’s representation in this matter. Thus, to the extent ...


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