United States District Court, E.D. California
ORDER DENYING PETITIONER'S APPLICATION FOR
CONSIDERATION OF THE HOLLOWAY DOCTRINE (ECF No. 183) AND
DENYING PETITIONER'S MOTION TO CORRECT ILLEGAL SENTENCE
PURSUANT TO FED. R. CRIM. P. 35
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
Darryl Burton is a federal prisoner proceeding pro se. In
1986, Petitioner pled guilty to manufacturing approximately
80 pounds of a Schedule II controlled substance and was
sentenced to 180 months in prison, and 25 years of special
parole. (ECF No. 147 at 2). Petitioner remains incarcerated.
On April 7, 2017, the Court reaffirmed the dismissal of
Petitioner's Federal Rule of Civil Procedure 60(b) motion
for reconsideration of his 2001 habeas corpus petition
brought pursuant to 28 U.S.C. § 2255, stating that
“[n]o further pleadings on any matter related to this
issue will be entertained.” (ECF No. 178 at 5).
Petitioner attempted to appeal this decision but was not
granted a certificate of appealability. (ECF No. 185 at 5).
On April 26, 2017, Petitioner filed a motion titled
“Claimant's Application for Consideration of the
Holloway Doctrine, ” asking the Court to exercise its
discretion to reduce his special parole sentence of 25 years.
(ECF No. 183). On March, 1, 2018, Petitioner filed his second
‘Motion to Correct an Illegal Sentence' pursuant to
Federal Rule of Criminal Procedure 35. (ECF No. 190.)
seeks to reduce his sentence under what is being called the
“Holloway Doctrine, ” named after a
petitioner in a case filed in the Eastern District of New
York. See United States v. Holloway, 68 F.Supp.3d
310 (E.D.N.Y. 2014). Petitioner describes the
Holloway Doctrine as giving “District Courts
 discretion to subsequently reduce a Petitioner's
sentence in the interest of fairness ‘even after all
appeals and collateral attacks have been exhausted, and there
is neither a claim of innocence nor any defect in the
conviction or sentence.' Holloway, 68 F.Supp.3d
at 311.” (ECF No. 183 at 2).
district court has only limited authority to modify a
sentence once it has been imposed. See 18 U.S.C.
§ 3582(c). Section 3582(c) provides that a judgment of a
conviction including a sentence of imprisonment is final and
may only be modified in three instances: 1) upon motion of
the Director of the Bureau of Prisons; 2) pursuant to a
motion by the Government under Rule 35(b) of the Federal
Rules of Criminal Procedure; and 3) pursuant to a sentencing
range lowered by United States Sentencing Commission pursuant
to 28 U.S.C. § 994(o).
Holloway, the Petitioner was charged with three
counts of armed carjacking in October 1994. 68 F.Supp.3d at
312. Each carjacking count was accompanied by an 18 U.S.C.
§ 924(c) enhancement for using a firearm during a crime
of violence. The first § 924(c) conviction carried a
mandatory 5-year sentence enhancement, and each additional
§ 924(c) conviction carried a mandatory sentence
enhancement of 20 years, to be served consecutively.
Id.; see also Acuna v. United States, No.
07-00615 SOM, 2016 WL 3747531, at *2 (D. Haw. July 8, 2016).
Prior to trial, Holloway was offered a plea bargain which
would have dropped two of the three § 924(c) charges,
resulting in a sentence of 130-147 months. Id.
Instead of accepting the plea deal, Holloway insisted on a
trial, but in so doing, he was required to face all three
§ 924(c) counts. At the conclusion of Holloway's
trial, he was found guilty of all three counts of carjacking,
each with § 924(c) enhancement, and was sentenced to 57
years and 7 months. Id. (12 years and 7 months for
the three carjackings, 5 years for the first § 924(c)
enhancement, 20 years for the second § 924(c)
enhancement, and 20 years for the third § 924(c)
enhancement.) Holloway's “trial penalty, ”
the difference in sentence between accepting a plea bargain
and exercising one's right to trial by jury, was 42
years. Id. at 313. The Holloway court noted
that as a result of these types of enhancement laws,
“cases like Holloway's produce sentences that would
be laughable if only there weren't real people on the
receiving end of them.” Id. at 312.
Holloway's conviction and sentence were affirmed by the
Second Circuit in 1997, and the Supreme Court in 1999.
Id. at 313. In 2002, the Eastern District of New
York denied Holloway's § 2255 collateral attack and
the Second Circuit refused to issue a certificate of
decades, Holloway's behavior while incarcerated was
exemplary. He received very few disciplinary infractions, and
took advantage of numerous education and counseling programs.
Id. at 314. In 2012, Holloway filed a motion to
reopen his section 2255 proceeding under Rule 60(b). The
district court recognized that there were good reasons to
revisit Holloway's sentence, but that there were no legal
avenues or basis remaining for vacating it. Id.
Instead of dismissing Holloway's motion, the court issued
an order “respectfully request[ing] that the United
States Attorney consider exercising her discretion to agree
to an order vacating two or more of Holloway's 18 U.S.C.
§ 924(c) convictions.” Id. Because of the
excessiveness of Holloway's sentence, Holloway's
evidence of rehabilitation, and even agreement from
Holloway's victims; the U.S. Attorney, noting that this
was “both a unique case and a unique defendant”
agreed to “withdraw  opposition to the pending Rule
60(b) motion … [and] wouldn't oppose the granting
of the underlying 2255 motion for the purpose of vesting the
court with authority to vacate two of the § 924(c)
convictions.” Id. at 315. After receiving the
U.S. Attorney's agreement, Holloway's lawyer moved to
vacate two of the three § 924(c) convictions, allowing
the court resentence Holloway. Id. at 316.
threshold matter, it is worth noting that Holloway
was decided by the Eastern District of New York and thus, is
not binding on this Court. Nor does Holloway
“create an actionable new right under federal
law.” Brown v. United States, No. 1:00-CR-290,
2016 WL 4745822, at *2 (N.D. Ohio Sept. 13, 2016). No circuit
court has directly addressed the Holloway Doctrine,
however, from a survey of district court cases, “the
one consistent theme for the Courts that have addressed the
Holloway decision is that unless the government acquiesces to
the reduction [in sentence], there is no jurisdiction for the
district court to reduce the Petitioner's
sentence.” See Whitt v. United States, No.
1:95 CR 33, 2017 WL 5257709, at *3 (N.D. Ind. Nov. 13, 2017)
(collecting cases); see also Acuna v. United States,
2016 WL 3747531, at *3 (D. Hawaii July 8, 2016)
(“Holloway is contingent on the Government's
acquiescence”); United States v. Smith, 2017
WL 2889307, at *2 (M.D. Fla. July 7, 2017) (“Mr.
Holloway would not have been eligible for relief without the
government's agreement, and the government has not agreed
to any such reduction in this case.”). “Indeed,
the Holloway court itself recognized the importance
of the government's agreement to its resentencing . . .
(‘the significance of the government's agreement is
already clear: it has authorized me to give Holloway back
more than 30 years of his life').” United
States v. Hendrix, No. 07 C 4041, 2018 WL 1064705, at *2
(N.D. Ill. Feb. 27, 2018) (citing Holloway, 68
F.Supp.3d at 315-16).
this Court was persuaded by the Holloway doctrine,
Petitioner's case involves circumstances distinguishable
from Holloway. First, one of the principle bases for
Holloway's reduction in sentence was that Holloway was a
model prisoner. The Petitioner here has made no such showing.
Second, Petitioner is asking for a reduction of a term of
special parole, not incarceration. Holloway makes no
mention of reducing probation sentences. Moreover, to be
truly analogous to Holloway, Petitioner would need
to bring this motion (or one like it to reduce his term of
probation) after demonstrating his ability to comply with the
terms of his probation for a number of years. Finally, as
discussed above, the government agreed to vacate two of
Holloway's convictions. Here, there has been no such
agreement by the government to vacate any part of
Petitioner's sentence. Because the circumstances of
Petitioner's case and that of Holloway are thus
distinguishable, Petitioner's motion is DENIED.
Fed. R. Crim. P. 35 Motion to Correct Illegal
March 1, 2018, Petitioner Burton filed a motion for
correction of sentence pursuant to Federal Rule of Criminal
Procedure 35(a). (ECF No. 190.) Petitioner argues that the
sentencing court erred when it imposed a twenty-five year
term of special parole as part of Petitioner's sentence
for manufacturing and aiding and abetting the manufacture of
a controlled substance in violation of 21 U.S.C. §
841(a)(1). This is the second Rule 35 Motion to Correct
Illegal Sentence that Petitioner has filed with this court.
The first Motion to Correct Illegal Sentence Pursuant to Rule
35 (“First Rule 35 Motion”) was filed on
September 26, 2013 and was denied in an order dated October
29, 2013. (ECF No. 147.) The Court has considered
Petitioner's arguments, and for the reasons discussed
below, again DENIES the motion.