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 Rene Lopez-Galvan's
(“Petitioner, ” “Defendant, ” or
“Lopez-Galvan”) motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255
(“§ 2255”). (ECF No. 110.) 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. (ECF No. 110.) The Ninth Circuit
granted Petitioner's application for leave to file a
second or successive § 2255 motion on March 14, 2017.
(ECF No. 111.) On April 17, 2017, the Government filed its
opposition. (ECF No. 113.) Petitioner filed a reply on May 8,
2017. (ECF No. 114.) Having considered the parties'
briefing and the record in this case, the Court DENIES
Petitioner's motion under § 2255.
pled guilty, pursuant to a plea agreement, to five counts of
Armed Bank Robbery in violation of 18 U.S.C. § 2113(a)
& (d) and one count of carrying a firearm during a crime
of violence in violation of 18 U.S.C. § 924(c)(1). (ECF
No. 63.) On May 20, 2002, Petitioner was sentenced to 151
months on each of the robbery counts to be served
concurrently, and 84 months on the § 924(c)(1) charge to
run consecutive to the 151 months. (ECF No. 75.)
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 custody 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 ...