United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER DENYING
PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT HIS
SENTENCE PURSUANT TO 28 U.S.C. § 2255 ECF NO.
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
the Court is Petitioner James Lamont Richardson's
(“Petitioner, ” “Defendant, ” or
“Richardson”) motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255
(“§ 2255”). (ECF No. 403.) Petitioner filed
an application for permission to file a second or successive
§ 2255 motion to the Ninth Circuit, with his motion
attached, on June 23, 2016. (Id.) The Ninth Circuit
granted Petitioner's application for leave to file a
second or successive § 2255 motion on March 21, 2017.
(ECF No. 402.) On April 14, 2017, the Government filed its
opposition. (ECF No. 410.) Petitioner filed a reply on April
27, 2017. (ECF No. 412.) Having considered the parties'
briefing and the record in this case, the Court DENIES
Petitioner's motion under § 2255.
February 4, 1999, Richardson was found guilty after a jury
trial of two counts of Hobbs Act robbery, one count of theft
of a firearm, two counts of carrying a firearm during a crime
of violence in violation of 18 U.S.C. § 924(c)(1), two
counts of death caused by use of a firearm during a crime of
violence in violation of 18 U.S.C. § 924(j)(1). (ECF
Nos. 158, 159.) Based on a second superseding indictment, Mr.
Richardson pled guilty to one additional count of Hobbs Act
robbery and one additional count of carrying a firearm during
a crime of violence, pursuant to a plea agreement. (ECF No
403, Ex. D.) The district court sentenced Richardson to two
terms of life imprisonment for the deaths caused by the use
of firearms during, two terms of 240 months imprisonment
concurrent for Hobbs Act robbery, 60 months consecutive for
carrying a firearm during a robbery, 240 months consecutive
for carrying a firearm during a different robbery, and 120
months concurrent for theft of a firearm. (ECF No. 403, Ex.
28 U.S.C. § 2255
2255 provides four grounds upon which a sentencing court may
grant relief to a petitioning in-custody defendant:
 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). Generally, only a narrow range of
claims fall within the scope of § 2255. United
States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981).
The alleged error of law must be “a fundamental defect
which inherently results in a complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 346 (1974).
Johnson II and Welch
to the Armed Career Criminal Act (“ACCA”), a
defendant must be sentenced to a mandatory minimum of 15
years to life in prison if he has three prior convictions for
“a violent felony or a serious drug offense, or
both.” 18 U.S.C. § 924(e)(1). The ACCA defines
“violent felony” as any crime punishable by
imprisonment for a term exceeding one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). Courts
generally refer to the first clause, § 924(e)(2)(B)(i),
as the “elements clause”; the first part of the
disjunctive statement in (ii) as the “enumerated
offenses clause”; and its second part (starting with
“or otherwise”) as the “residual
clause.” Johnson v. United States, 135 S.Ct.
2551, 2556-57, 2563 (2015) (“Johnson
II”); United States v. Lee, 821 F.3d
1124, 1126 (9th Cir. 2016).
Johnson II, the Supreme Court held that
“imposing an increased sentence under the residual
clause of the Armed Career Criminal Act violates the
Constitution's guarantee of due process, ” on the
basis that “the indeterminacy of the wide-ranging
inquiry required by the residual clause both denies fair
notice to defendants and invites arbitrary enforcement by
judges.” 135 S.Ct. at 2557, 2563. “Two features
of the residual clause conspire to make it unconstitutionally
vague.” Id. at 2557. First, “the
residual clause leaves grave uncertainty about how to
estimate the risk posed by a crime” by “t[ying]
the judicial assessment of risk to a judicially imagined
‘ordinary case' of a crime, not to real-world facts
or statutory elements.” Id. Second,
“[b]y combining indeterminacy about how to measure the
risk posed by a crime with indeterminacy about how much risk
it takes for the crime to qualify as a violent felony, the
residual clause produces more unpredictability and
arbitrariness than the Due Process Clause tolerates.”
Id. at 2558.
Supreme Court subsequently held that its decision in
Johnson II announced a new substantive rule that
applies retroactively to cases on collateral review.
Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
“By striking down the residual clause for vagueness,
[Johnson II] changed the substantive reach of the
Armed Career Criminal Act, altering the ‘range of
conduct or the class of persons that the [Act]
punishes.” Id. at 1265 (quoting Schriro v.
Summerlin, 542 U.S. 348, 353 (2004)). As a result,
defendants sentenced pursuant to the ACCA residual ...