United States District Court, D. Nevada
J. Dawson United States District Judge
the Court is defendant Calvin O'Hara's Motion to Hold
in Abeyance an Abridged Motion to Vacate, Set Aside, or
Correct Criminal Sentence under 28 U.S.C. § 2255 (ECF
O'Hara's second attempt at relief under 28 U.S.C.
§ 2255. His current motion asks the Court to delay
decision on his second § 2255 petition until the Ninth
Circuit authorizes its filing and until he can file an
unabridged version of the petition. The Ninth Circuit granted
O'Hara's request to file a successive § 2255
petition on February 16, 2017. O'Hara's new motion
challenges the career offender enhancement of the residual
clause of § 4B 1.2(a) of the United States Sentencing
Guidelines (“U.S.S.G.”). He argues that
Johnson v. United States, 135 S.Ct. 2551 (2015),
invalidated U.S.S.G. § 4B 1.2(a), making his sentence
unconstitutional. The Court has not ordered the government to
respond to O'Hara's petition and now finds that a
response is unnecessary. Contrary to O'Hara's
argument, the Sentencing Guidelines are not subject to a
vagueness challenge under Johnson. Accordingly, the
Court denies O'Hara's petition.
O'Hara is currently serving a 120-month sentence after he
pleaded guilty to possession of a stolen firearm in violation
of 18 U.S.C. § 922(j). Judgment 1, ECF No. 69. At
sentencing, the Court designated two of O'Hara's
prior convictions “crimes of violence” under
U.S.S.G. § 4B1.2(a). Those prior convictions resulted in
an increased sentence. The Court issued its judgment of
conviction reflecting the enhanced sentence on February 3,
2014. Id. O'Hara did not pursue an appeal.
Instead, he timely moved to vacate his sentence under 18
U.S.C. § 2255. O'Hara's petition brought two
claims for ineffective assistance of counsel arising out his
pre-trial attorney's perceived failure to make certain
Fourth Amendment arguments and his counsel's failure to
adequately advise O'Hara regarding his plea agreement.
Mot. to Vacate 4-5, ECF No. 70. The Court reviewed and denied
O'Hara's petition on March 10, 2015. Order, ECF No.
71. It also denied O'Hara a certificate of appealability
on both claims. Id.
months later, the Supreme Court issued Johnson.
There, the Court invalidated the Armed Career Criminal
Act's residual clause as unconstitutionally vague. In so
doing, the Supreme Court recognized a new substantive right
that applied retroactively on collateral review. See
Welch v. United States, 136 S.Ct. 1257, 1265 (2016).
Johnson reopened the door for O'Hara and
thousands of other inmates to try to challenge the
constitutionality of their convictions as long as they filed
their petition within one year of the Court's recognition
of the right. See 28 U.S.C. § 2255(f)(3).
Having already sought relief once under § 2255,
O'Hara requested Ninth Circuit authorization to file a
successive petition. While the Ninth Circuit considered
O'Hara's request, he filed an abridged motion to
vacate under § 2255 with this Court. He asked that the
Court hold it in abeyance until the Ninth Circuit determined
whether he would be allowed to file a second petition.
O'Hara claimed that he would file the unabridged version
of his motion by December 26, 2016, but he did not. Abridged
Mot. to Vacate 3, ECF No. 86.
Ninth Circuit granted O'Hara's request on February
16, 2017, and directed this Court to consider his second
§ 2255 petition, which the Court now does.
U.S.C. § 2255 allows a defendant in federal custody to
challenge a conviction that “was imposed in violation
of the Constitution or laws of the United States.” 28
U.S.C. § 2255(a). Section 2255 is not intended to give
criminal defendants multiple opportunities to challenge their
sentences. United States v. Dunham, 767 F.2d 1395,
1397 (9th Cir. 1985). Rather, § 2255 applies only to
cases where a “fundamental defect” in the
defendant's proceedings resulted in a “complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 346 (1974). That limitation is
based on the presumption that a defendant whose conviction
has been upheld on direct appeal has been fairly and
legitimately convicted. United States v. Frady, 456
U.S. 152, 164 (1982).
necessary, the Court may order additional briefing or hold an
evidentiary hearing to decide a § 2255 petition.
However, the Court need not order a hearing in every case. In
fact, the Court may summarily dismiss the petition if it is
clear from the record that the petitioner does not state a
claim for relief or if the claims are frivolous or palpably
incredible. United States v.
872 F.2d 915, 917 (9th Cir. 1989) citing Baumann v.
United States, 692 F.2d 565, 570- 71 (9th Cir. 1982).
However, if the petition is based upon conduct that happened
outside the courtroom or off the record, the Court must hold
an evidentiary hearing. Burrows, 872 F.2d at
initial matter, the Court finds that the record in this case
and the applicable legal standard is sufficiently developed
to decide O'Hara's petition without an evidentiary
hearing. Likewise, the Court need not order the government to
respond because the Supreme Court has already encountered-and
rejected-O'Hara's arguments. See Beckles v.
United States, 137 S.Ct. 886 (2017).
United States Sentencing Guidelines are not subject to the
void-for-vagueness challenge O'Hara brings here.
O'Hara asks the Court to extend the Supreme Court's
reasoning in Johnson to invalidate U.S.S.G. §
4B1.2(a), which determined that two of O'Hara's prior
felony convictions were “crimes of violence.”
Abridged Mot. to Vac. 5, ECF No. 86. However, the vagueness
challenge to the Armed Career Criminal Act that
Johnson accepted is not available for challenges to
the United States Sentencing Guidelines. Two years after
Johnson, the Supreme Court encountered a vagueness
challenge to the sentencing guidelines in Beckles v.
United States. 137 S.Ct. 886 (2017). Though the language
of the sentencing guidelines' residual clause was nearly
identical to the residual clause of the ACCA, the Court did
not use Johnson to invalidate the guidelines.
Instead, the Court found that the guidelines were not subject
to void-for-vagueness challenges at all because they are only
advisory. Beckles, 137 S.Ct. at 892. The sentencing