United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE
before the Court is Defendant Dennis Graves' Motion to
Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 (#94). No. response has been ordered by the
December 9, 2009, Defendant Dennis Graves
(“Movant” or “Defendant”) was
indicted in a one-count indictment (#7) charging bank robbery
in violation of 18 U.S.C. § 2113(a). On October 20,
2010, at a jury trial, Movant was found guilty. (#56).
January 19, 2011, Movant was sentenced to 210 months in
custody-having received a Career Offender Enhancement having
previously been convicted of at least two crimes of violence,
two counts of bank robbery and Nevada robbery. Movant
appealed the judgment on January 27, 2011. (#65). On December
22, 2011, the Ninth Circuit affirmed the judgment and
sentence of the district court. (#76). On April 24, 2012, the
United States Supreme Court denied Movant's petition for
writ of certiorari. (#81).
April 8, 2013, Movant filed his first motion to vacate under
28 U.S.C. § 2255 (#83). The Court denied (#85) the
motion and denied Defendant a certificate of appealability
(#91). The Ninth Circuit Court of Appeals then denied
Defendant a certificate of appealability (#92) and denied his
appeal as moot. In the instant motion, filed on June 8, 2016,
Movant contends that- pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015)
(“Johnson”), which can be applied
retroactively-he does not qualify as a career offender, and
that his sentence violates due process of law.
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). Section
2255 relief 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). Section 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).
§ 2255 motion, Movant argues that under Johnson
he does not qualify for the United States Sentencing
Guideline (“USSG”) § 2K2.1 sentencing
enhancement pursuant to his status as a career offender and
that his sentence violates due process. The court disagrees.
Johnson, the United States Supreme Court held 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”), to be
unconstitutionally vague. 135 S.Ct. at 2557. In particular,
the Supreme Court held that “increasing a
defendant's sentence under the clause denies due process
of law.” Id. 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 ...