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United States v. Bryant

United States District Court, D. Nevada

September 29, 2019

UNITED STATES OF AMERICA, Respondent/Plaintiff,
DONNIE BRYANT, Petitioner/Defendant.


          Gloria M. Navarro, District Judge United States District Court.

         Pending before the Court is Petitioner Donnie Bryant's (“Petitioner”) pro se Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“2255 Motion”), (ECF No. 755). The Government filed a Response, (ECF No. 757), and Petitioner did not file a reply.

         Also pending before the Court is Petitioner's 2255 Motion, (ECF Nos. 759, 779). The Government filed a Response, (ECF No. 788), and Petitioner filed a Reply, (ECF No. 793).

         Also pending before the Court is Petitioner's Motion to Stay, (ECF No. 821). The Government filed a Response, (ECF No. 823), and Petitioner filed a Reply, (ECF No. 824).

         Also pending before the Court is the Motion to Withdraw as Counsel for Petitioner, (ECF No. 794), filed by Mario A. Valencia.

         I. BACKGROUND

         On February 28, 2006, Petitioner was convicted on several counts of Violent Crimes in Aid of Racketeering Activity (“VICAR”), including murder, and numerous weapons offenses under 18 U.S.C. § 924(c), for acts he committed as a juvenile. (Superseding Indictment, ECF No. 18). The sentencing court, acting pursuant to mandatory sentencing statutes, sentenced Petitioner to life imprisonment for the VICAR murder count (Count 1), plus an additional 50 years for the other offenses. (J., ECF No. 566).

         Petitioner appealed, arguing that the evidence was insufficient to support his convictions under VICAR, and that several of his VICAR and § 924(c) convictions were multiplicitous and violated the Double Jeopardy clause. See United States v. Bryant, 357 Fed. App'x. 945, 947 (9th Cir. 2009). The Ninth Circuit affirmed in part, remanded with instructions to vacate in part, and dismissed in part.[1] Id. at 948. On remand, the parties filed a stipulation to dismiss certain counts. (See Order on Stipulation, ECF No. 616). On March 10, 2010, the court entered an amended judgment sentencing Petitioner to life imprisonment, plus an additional 40 years for the other offenses. (2010 Am. J., ECF No. 617).

         Following the Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), which held that the Eighth Amendment prohibits a juvenile from being subjected to a mandatory sentence of life in prison without parole, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence. (2013 Mot. to Vacate, ECF No. 655). In that motion, Petitioner also argued that his convictions should be vacated because the district court gave an erroneous jury instruction regarding VICAR's “purpose” element. The court granted Petitioner's motion for re-sentencing in the light of Miller, but denied Petitioner's motion to vacate the convictions. (Mins. of Proceedings, ECF No. 671); (Order, ECF No. 672). The court subsequently sentenced Petitioner to 40 years in prison for his VICAR murder conviction, for a total of 80 years for all of the counts of conviction. (2014 Am. J., ECF No. 694).

         Petitioner timely filed an appeal regarding the denial of both his motion to vacate, and his amended sentence. In that appeal, Petitioner argued, inter alia, that the court failed in considering relevant sentencing factors under Miller and under § 3553(a), and that his sentence violated the Eight Amendment. United States v. Bryant, 609 Fed.Appx. 925, 927-29 (9th Cir. 2015). On April 27, 2015, the Ninth Circuit issued its decision, rejecting each of Petitioner's arguments and affirming the district court. Id. Additionally, the Ninth Circuit noted: “It appears that the district court actually misapplied [18 U.S.C. § 924(c)], which should have subjected Bryant to an additional 110 years in prison, rather than 40. Because the government did not appeal this issue during Bryant's first appeal, Bryant was able to retain the benefit of this miscalculation.” Id. at 928 n.2.

         On June 25, 2015, the U.S. Supreme Court announced its decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court ruled that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Johnson, 135 S.Ct. at 2557.

         Months later, in February 2016, Petitioner timely filed the instant pro se 2255 Motion (“Pro se 2255 Motion”), (ECF No. 755), arguing several grounds for relief, including Eight Amendment violations and ineffective assistance of counsel. (Pro se 2255 Mot. at 10-15, ECF No. 755). The Motion does not address the Supreme Court's decision in Johnson. The Government filed a Response, (ECF No. 757), requesting that the Court deny the Motion on procedural grounds and as lacking merit. Petitioner did not reply.

         On April 27, 2016, pursuant to the District of Nevada's First Amended General Order 2015-03 (“Amended General Order”), the Office of the Federal Public Defender for the District of Nevada (the “FPD”) was appointed to represent certain defendants identified by the U.S. Sentencing Commission for the limited purpose of determining whether the defendants might qualify for relief pursuant to 28 U.S.C. § 2255 in light of Johnson. Petitioner was included in the list. Additionally, the Amended General Order permitted the FPD to file an abridged § 2255 motion prior to June 26, 2016, in order to toll the applicable statute of limitations. In adherence with the Amended General Order, an abridged 2255 Motion, (ECF No. 759), was filed in the instant case on June 22, 2016. Shortly thereafter, the FPD withdrew from this matter due to a conflict of interest. New counsel was appointed, and Petitioner timely filed the instant supplemental 2255 Motion. (Suppl. 2255 Mot. (“Johnson 2255 Mot.”), ECF No. 779).

         Subsequently, counsel for Petitioner, Mario A. Valencia, filed a Motion to Withdraw as Counsel, (ECF No. 794). Additionally, Petitioner filed a Motion to Stay, (ECF No. 821). This Order now follows.


         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). When a petitioner seeks relief pursuant to a right newly recognized by a decision of the United States Supreme Court, a one-year statute of limitations applies. 28 U.S.C. § 2255(f)(3). That one-year limitation begins to run from “the date on which the right asserted was initially recognized by the Supreme Court.” Id. § 2255(f)(3).


         A. Pro se 2255 Motion, (ECF No. 755)

         In his Pro se 2255 Motion, (ECF No. 755), Petitioner asserts five grounds for relief: (1) that the sentencing court abused its discretion in sentencing him without considering the mandatory sentencing factors under Montgomery v. Louisiana; (2) that his sentence violates the Eighth Amendment; (3) that his conviction and sentence for VICAR murder cannot stand because his prior VICAR murder adjudication was “expunged”; (4) that the Government was prohibited from charging him with VICAR murder because, at the time he committed that offense, he was on “juvenile probation” for a previous VICAR murder; and (5) that his trial attorney was ineffective during plea negotiations. (Pro se 2255 Mot. at 10-16, ECF No. 755).

         In its Response, (ECF No. 757), the Government contends that Petitioner's challenges to his sentence are barred by the successive claim rule because those challenges were raised in Petitioner's direct appeal and rejected by the Ninth Circuit. (See Resp. 9:18-10:19, ECF No. 757). The Government further argues that Petitioner procedurally defaulted on the rest of his claims because those should have been raised on direct appeal and Petitioner fails to demonstrate both cause and actual prejudice. (Id. 10:20-14:23). Regarding ineffective assistance of trial counsel, the Government contends that Petitioner offers nothing to support his claim and thus fails to make a threshold showing of either deficient performance or prejudice. (Id.). Petitioner did not reply to any of the Government's arguments.

         1. The successive claim rule

          “When a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as a basis for a subsequent § 2255 petition.” United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) (citing United States v. Redd, 759 F.2d 699, 700-01 (9th Cir. 1985)). Restating an issue by using different language does not ...

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