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Morelli v. United States

United States District Court, S.D. California

July 17, 2017

Ervin Morelli, Petitioner,
v.
United States of America, Respondent.

          ORDER DENYING PETITIONER'S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [ECF. NO. 78.]

          HON. GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner Ervin Morelli's (“Petitioner's” or “Morelli's”) motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The motion was filed on June 13, 2016. (Dkt. No. 78.)[1] Respondent United States of America (“Respondent” or “Government”) opposes. (Dkt. No. 84.) For the reasons set forth below, the Court DENIES Petitioner's 28 U.S.C. § 2255 motion.

         BACKGROUND

         On or about December 9, 2014, Morelli transported, moved, or attempted to transport or move, aliens within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). (Dkt. No. 1.) Morelli pleaded guilty to the § 1324 offense on February 24, 2015. (Dkt. No. 40.) Morelli was sentenced on May 29, 2015 with a guidelines calculation that incorporated an adjustment under USSG § 2L1.1(b)(6).[2] (Dkt. No. 68.) He was sentenced to a below-guidelines term of thirty months in custody and three years of supervised release. (Id.)

         On June 13, 2016, while in custody, Morelli timely filed the instant § 2255 motion to vacate, set aside, or correct the sentence pursuant to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015).[3] (Dkt. No. 78.) Petitioner argues that the Court's imposition of an increased sentence under USSG § 2L1.1(b)(6) violated his due process rights under the Fifth Amendment. (Id.) Specifically, Morelli contends that (1) USSG § 2L1.1(b)(6) “now falls under the Residual Clause” of the Armed Career Criminal Act (“ACCA”); (2) Petitioner's prior state convictions do not qualify as predicate offenses for ACCA enhancement; (3) and Johnson retroactively applies to his sentence. (Id.)

         On August 3, 2016, the Court appointed the Federal Defenders of San Diego, Inc. to represent Morelli. (Dkt. No. 79.) Petitioner's counsel subsequently notified the Court that after thoroughly researching the case, counsel did not intend to file any supplement to Morelli's § 2255 motion or present any additional argument or legal authority on Morelli's behalf. (Dkt. No. 83.)

         On October 7, 2016, the Government filed an opposition. (Dkt. No. 84.) Morelli filed a reply, nunc pro tunc to October 28, 2016. (Dkt. No. 86.)

         Morelli's supervised release term commenced on February 24, 2017. (Dkt. No. 87.)

         LEGAL STANDARD

         28 U.S.C. § 2255 allows a court to “vacate, set aside, or correct the sentence” of a federal prisoner 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). Where a petitioner exhausts or waives his direct appeal, the Court is entitled to presume that he stands fairly convicted. United States v. Frady, 456 U.S. 152, 164 (1982). However, § 2255 warrants relief if a prisoner alleges a constitutional or jurisdictional error, or a “fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         DISCUSSION

         Morelli contends he is entitled to habeas relief in light of the Supreme Court's decision in Johnson. (Id.) His claims fail for the reasons set forth below.

         A. Johnson is Inapplicable.

         In Johnson, the Supreme Court examined language from the ACCA, which provides for a mandatory sentence of fifteen years of imprisonment for a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e). There are three “clauses” in the statute defining what type of prior crime qualifies as a “violent felony”: (1) the “elements” clause: “has an element the use, or attempted use, or threatened use of physical force against the person of another”; (2) the “enumerated offenses” clause: “is burglary, arson, or extortion, [or] involves use of ...


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