Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Graves

United States District Court, D. Nevada

October 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DENNIS GRAVES, Defendant.

          ORDER

          KENT J. DAWSON UNITED STATES DISTRICT JUDGE

         Presently 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 Court.

         I. Background

         On 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).

         On 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).

         On 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.

         II. Legal Standard

         Federal 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).

         Limitations 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).

         III. Discussion

         In his § 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.

         In 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.