United States District Court, S.D. California
ORDER DENYING PETITIONER'S 28 U.S.C. § 2255
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [ECF. NO.
Gonzalo P. Curiel United States District Judge.
the Court is Petitioner Ervin Morelli's
“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.) 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.
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). (Dkt. No. 68.) He was sentenced to a
below-guidelines term of thirty months in custody and three
years of supervised release. (Id.)
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). (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.)
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.)
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.)
supervised release term commenced on February 24, 2017. (Dkt.
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)).
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
Johnson is Inapplicable.
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 ...