United States District Court, S.D. California
ORDER GRANTING MOTION FOR RECONSIDERATION, LIFTING
STAY AND DENYING DEFENDANT'S § 2255 MOTION [ECF NOS.
227, 287, 290, 294]
Ted Moskowitz, Judge.
Molina-Villanueva (“Defendant”) has filed a
motion to vacate, set aside, or reduce his sentence pursuant
to 28 U.S.C. § 2255, Johnson v. United States,
135 S.Ct. 2551 (2015), and Welch v. United States,
136 S.Ct. 1257 (2016). (ECF No. 227.) The Court recently
stayed consideration of Defendant's motion pending the
Supreme Court's resolution of Sessions v.
Dimaya, No. 15-1498, cert. granted sub nom. Lynch v.
Dimaya, 137 S.Ct. 31 (Sept. 29, 2016). (ECF No. 280.)
Defendant has moved for reconsideration of the stay. (ECF
Nos. 287, 290, 294.) For the reasons discussed below, the
Court grants Defendant's motion for reconsideration,
lifts the stay, and denies Defendant's § 2255
February 17, 2011, Defendant pled guilty pursuant to a plea
agreement to one count of conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a) (Count 1),
and one count of possession of a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c)
(Count 2). (ECF No. 72.) The “crime of violence”
that served as the predicate for Defendant's conviction
on Count 2 was his conviction on Count 1 for conspiracy to
commit Hobbs Act robbery. On October 28, 2011, the Court
sentenced Defendant to a term of 37 months on Count 1 and 60
months on Count 2, run consecutively for a total term of
imprisonment of 97 months. (ECF Nos. 192, 193.)
26, 2015, the Supreme Court decided Johnson, in
which it held that the residual clause definition of
“violent felony” in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was
unconstitutionally vague. On October 19, 2015, the Ninth
Circuit decided Dimaya v. Lynch, 803 F.3d 1110 (9th
Cir. 2015), holding that the reasoning of Johnson
applied to the residual clause definition of “crime of
violence” in 18 U.S.C. § 16(b) so as to render it
void for vagueness.
2, 2016, Defendant filed the instant § 2255 motion. He
moves to vacate his conviction under § 924(c), arguing
that the reasoning of Johnson and Dimaya
apply to the residual clause definition of “crime of
violence” in § 924(c)(3)(B) and lead to the
conclusion that the latter statute is likewise
unconstitutionally vague. On July 17, 2016, the government
filed a response brief in which it moved to stay
Defendant's motion pending the outcome of United
States v. Begay, in which the Ninth Circuit is
anticipated to address the constitutionality of §
924(c)(3)(B) in light of Johnson. (ECF No. 246.) On
July 22, 2016, Defendant filed a reply brief in which he
opposed a stay.
August 5, 2016, in response to the government's
contention in its opposition brief that by filing his §
2255 motion, Defendant had breached the provision of his plea
agreement in which he waived his right to collateral attack,
Defendant filed a motion for voluntary dismissal of his
petition. After the government filed a brief in which it
withdrew its claim of breach, Defendant filed an unopposed
motion to reinstate his § 2255 motion (ECF No. 268),
which the Court granted on October 14, 2016 (ECF No. 273).
September 29, 2016, the Supreme Court granted certiorari in
Dimaya. Dimaya, No. 15-1498, 137 S.Ct. 31
(Sept. 29, 2016). On March 29, 2017, the Ninth Circuit
entered an order deferring submission of Begay
pending the Supreme Court's resolution of
Dimaya. See Order (Doc. No. 87), United
States v. Begay, No. 14-10080 (9th Cir. Mar. 29, 2017).
On June 9, 2017, this Court entered an order staying
consideration of Defendant's § 2255 motion pending
the outcome of Dimaya, noting that the Supreme Court
was expected to issue its decision no later than June 2017,
such that the ensuing stay was anticipated to be brief.
26, 2017, the Supreme Court restored Dimaya to the
calendar for reargument, meaning it will not be issuing a
decision until its next term, which ends in June 2018.
29, 2017, Defendant filed a motion for reconsideration of the
Court's stay order in light of the development in
Dimaya. On June 30, 2017, the Court issued an order
in which it advised the parties it was considering vacating
the stay and ruling on the merits of Defendant's §
2255 motion, and permitted the parties to file supplemental
briefing by July 10, 2017.
U.S.C. § 2255 provides, in pertinent part, that a
prisoner in custody “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 … may
move the court which imposed the sentenced to vacate, set
aside or correct the sentence.” 28 U.S.C. § 2255.
moves to vacate his conviction and sentence on Count 2 for
violating § 924(c), which criminalizes possession of a
firearm in furtherance of a crime of violence. For purposes