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Fultz v. United States

United States District Court, S.D. California

July 12, 2017

MARIO DENANE FULTZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 93-cr-0351 DMS

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          Hon. Dana M. Sabraw United States District Judge

         Pending before the Court is Petitioner Mario Denane Fultz's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. Petitioner moves to vacate his sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). Respondent United States of America opposes. For the reasons stated below, the Court denies the motion.

         I.

         BACKGROUND

         On October 20, 1993, the jury found Petitioner guilty of two counts of robbery on a government reservation, in violation of 18 U.S.C. § 2111 (counts one and three), and two counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (counts two and four).

         The probation department prepared a Presentence Report and calculated a guideline range of 63 to 78 months as to counts one and three. It also determined Petitioner was subject to a five-year consecutive sentence as to count two and a twenty-year consecutive sentence as to count four. At the sentencing hearing on January 10, 1994, the Court sentenced Petitioner to a total sentence of 363 months, consisting of 63 months as to counts one and two to run concurrently, 60 months as to count two to run consecutively, and 240 months as to count four to run consecutively.

         On May 18, 2016, Petitioner filed the present motion, challenging his sentence in light of the Supreme Court decision in Johnson.[1] Petitioner argues Johnson renders the residual clause in 18 U.S.C. § 924(c)(3) unconstitutional, and further argues Johnson applies retroactively on collateral review pursuant to Welch. Thus, Petitioner contends he is entitled to relief because his convictions for robbery no longer qualify as a crime of violence.

         In opposition to Petitioner's motion, Respondent argues Petitioner is not entitled to relief for the following reasons: (1) Petitioner procedurally defaulted his claims by failing to raise it on direct appeal, (2) Petitioner did not meet the burden of proving he was convicted under the residual clause in § 924(c)(3), (3) Johnson does not invalidate the residual clause in § 924(c)(3), and (4) Petitioner's convictions for robbery remain a crime of violence even if the residual clause in § 924(c)(3) is rendered unconstitutional pursuant to Johnson.

         II.

         LEGAL STANDARD

         A prisoner in custody may move the federal court that imposed a sentence upon him to vacate, set aside, or correct that sentence on 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[.]

28. U.S.C. § 2255(a). If the court determines that relief is warranted under § 2255, it must “vacate and set the judgment aside” and “discharge the prisoner or resentence him or grant a new trial or correct the ...


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