United States District Court, D. Nevada
M. Navarro, District Judge United States District Court.
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.
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).
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).
pending before the Court is the Motion to Withdraw as Counsel
for Petitioner, (ECF No. 794), filed by Mario A. Valencia.
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).
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. 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).
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).
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.
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.
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.
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).
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
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).
Pro se 2255 Motion, (ECF No. 755)
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).
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.
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 ...