United States District Court, S.D. California
WILLIAM Q. HAYES, United States District Judge
matter before the Court is the motion pursuant to 28 U.S.C.
§ 2255 filed by Defendant/Petitioner. (ECF No. 670).
Defendant/Petitioner moves the Court to vacate his sentence
based upon Johnson v. United States, 135 S.Ct. 2551
(2015) and Welch v. United States, 136 S.Ct. 1257
charges against the Petitioner and his co-defendants resulted
from an armed jewelry store robbery in San Diego, California
on July 1, 1992. On April 12, 1996, a jury found Petitioner
guilty of Count 1, interference with commerce by robbery
(Hobbs Act robbery), in violation of 18 U.S.C. §
1951(a); and Count 2, aiding and abetting the using and
carrying of a firearm in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2.
Presentence Investigation Report calculated the guideline
range for Count 1 at 151-188 months. The report stated that
Petitioner was subject to mandatory consecutive terms of
twenty years on Count 2 for a second conviction under 18
U.S.C. § 924(c).
August 30, 1996, the Court entered a Judgment sentencing
Petitioner to a term of 161 months as to Counts 1, concurrent
with Central District of Los Angeles Case No. 94-0362; and
240 months as to Count 2, consecutive to Count 1 and Central
District of Los Angeles Case No. 94-0362. (ECF No. 462).
filed a timely appeal of his conviction on a number of
grounds and the Court of Appeals affirmed Petitioner's
conviction. United States v. Sehorn, 137 F.3d 1094,
1104 (9th Cir. 1998).
filed a motion to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255 which was denied by the district
court. (ECF No. 626).
Johnson, Petitioner filed a motion in the Court of
Appeals seeking permission to file a second or successive
petition under 28 U.S.C. § 2255. Petitioner contends
that he is entitled to an order vacating his sentence based
upon the decision of the Supreme Court in Johnson
striking down the residual clause § 924(e)(2)(B)(ii) of
the Armed Career Criminal Act as unconstitutional vague.
September 20, 2016, the Court of Appeals granted the
application to file a second or successive 28 U.S.C. §
2255 motion and transferred Petitioner's motion to
vacate, set aside or correct his sentence under 28 U.S.C.
§ 2255 to this district court. (ECF No. 676).
February 7, 2017, Petitioner filed a supplemental pleading in
support of his motion to vacate his sentence. (ECF No. 690).
U.S.C. § 2255 provides that "[a] prisoner in
custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence." 28 U.S.C. § 2255. A petitioner
seeking relief under § 2255 must file a motion within
the one year statute of limitations set forth in §
2255(f). Section 2255(f)(3) provides that a motion is timely
if it is filed within one year of "the date on which the
right asserted was initially recognized by the Supreme Court,
if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review." 28 U.S.C. § 2255(f)(3).
OF THE PARTIES
contends that his sentence on Count 2 for violation of 18
U.S.C. § 924(c) must be vacated because Hobbs Act
robbery is not, as a matter of law, a predicate crime of
violence after Johnson. Petitioner contends that the
holding in Johnson which invalidated the residual
clause in the term "violent felony" of the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e)(2)(B)(ii), applies equally to the residual clause in
the term "crime of violence" in 18 U.S.C. §
924(c)(3)(B). Petitioner further asserts that Hobbs Act
robbery is not a crime of violence under the force clause of
§ 924(c)(3)(A) because Hobbs Act ...