United States District Court, S.D. California
ORDER: (1) DENYING MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER 28 U.S.C. 2255, AND (2) DENYING
CERTIFICATE OF APPEALABILITY
JAMES LORENZ UNITED STATES DISTRICT JUDGE
Robert Leonard Wood (“Petitioner”) filed a motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence. Respondent filed a Response and
Opposition to the Motion. The Court has reviewed the record,
the submissions of the parties, and the supporting exhibits.
For the reasons set forth below, the Court
DENIES Petitioner's Motion without
Robert Leonard Wood was charged on March 7, 2002 in two
indictments as follows: in case number 02-CR-0624-L
Petitioner was charged with three counts of conspiracy to
commit murder in violation of 18 U.S.C. § 1959(a)(5),
characterized as violent crimes in aid of racketeering
(“VCAR”); and in case number 02-CR-0625-L
Petitioner was charged with one count of conspiracy to
distribute cocaine and cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and 846. (Indictment, No.
02-CR-0624 [ECF NO. 8]; Indictment, No. 02-CR-0625 [ECF NO.
February 28, 2003, Petitioner pled guilty to Count One of the
indictment in No. 02-CR-0624-L and Count One of the
indictment in No. 02-CR-0625-L and entered a plea agreement.
(Plea Agreement No. 02-CR-0624 [ECF NO. 53]; Plea Agreement,
No. 02-CR-0625 [ECF NO 144.]) On July 10, 2003, Petitioner
was sentenced by this Court to concurrent sentences of 120
months, three years supervised release, a $1000 fine, and a
special assessment of $100 in No. 02-CR-0624-L (“the
VCAR case”); and 300 months, five years supervised
release and a special assessment of $100 in No. 02-CR-0625-L
(“the drug case”). (Amended Judgment, No.
02-CR-0624 [ECF NO. 104]; Amended Judgment, No. 02-CR-0625
[ECF NO. 300.]) 
29, 2003, Petitioner filed a Notice of Appeal. [Notice, No.
02-CR-0624 [ECF NO. 94]; Notice, No. 02-CR-0625 [ECF NO.
242.]) The Ninth Circuit dismissed Petitioner's appeal
upon the determination that he knowingly and voluntarily
entered a plea waiver, waiving his right to appeal.
United States v. Wood, 117 Fed.Appx. 519, 521 (9th Cir.
2004). Petitioner filed his first petition under 28 U.S.C.
2255 in this Court on December 2, 2005. (Mot. [ECF NO. 176.])
On July 24, 2007, this Court dismissed Petitioner's
petition as barred by his appellate waiver, and to the extent
Petitioner's claims were not barred by waiver, the Court
denied his claims on the merits. (Order [ECF NO. 224.])
17, 2016, Petitioner filed an application in the Ninth
Circuit Court of Appeals for leave to file a second or
successive section 2255 motion in light of Johnson v.
United States, 135 S.Ct. 2551 (2015). Wood v. United
States, Application, No. 16-71500, (9th Cir. May 17,
2016). On June 24, 2016, Petitioner filed the current
petition in case numbers 02-CR-0624 and 02-CR-0625 to protect
the statute of limitations while the application for leave to
file a second or successive section 2255 petition was pending
before the Ninth Circuit. [Motion, No. 02-CR-0624 [ECF NO.
297]; Motion, No. 02-CR-0625 [ECF NO. 689.] On December 22,
2016, the Ninth Circuit granted Petitioner's application
for leave to file a second or successive petition. See
Wood v. United States, C.A. No. 16-71500. This Court
issued a briefing schedule on Petitioner's Motion and the
Government filed a Response in Opposition on May 19, 2017,
followed by Petitioner's Reply on May 22, 2017.
28 U.S.C. § 2255, a federal prisoner “may move the
court which imposed the sentence to vacate, set aside or
correct the sentence” 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). A prisoner seeking relief pursuant to section
2255 must allege a constitutional, jurisdictional, or
otherwise “fundamental defect which inherently results
in a complete miscarriage of justice [or] an omission
inconsistent with the rudimentary demands of fair
procedure.” Hill v. United States, 368 U.S.
424, 428 (1962). It is incumbent on the petitioner to show by
a preponderance of the evidence that he is entitled to
relief. Silva v. Woodford, 279 F.3d 825, 835 (9th
contends that his sentence was improperly enhanced under the
residual clause of the career offender statute, U.S.S.G.
§ 4B1.2, which he contends has since been found to be
unconstitutional under Johnson. (Mot. at 2).
Petitioner argues by analogy that the Armed Career Criminal
Act (“ACCA”) residual clause held
void-for-vagueness in Johnson is identical to the
“residual clause” in the career offender
definition of a “crime of violence” under USSG
§ 4B1.2(a)(2), therefore the Court must reconsider his
sentence without the career offender designation.
(Id.) Despite the passage of a great deal of time
since Petitioner's sentencing, he argues that his claims
are not procedurally barred because he could not have raised
them prior to Johnson's holding. (Id.
Government objects and contends the Court should dismiss or
deny the Petition for six reasons: (1) Petitioner waived his
right to collaterally attack his sentence through his plea;
(2) Petitioner procedurally defaulted his claim regarding the
career offender guidelines calculation because he did not
raise this claim on appeal; (3) Petitioner cannot demonstrate
that the residual clause in USSG § 4B1.2 was relied upon
in his sentencing; (4) Petitioner cannot raise a due process
challenge to the application of the advisory or mandatory
guidelines after Beckles v. United States, 137 S.Ct.
886, 890 (2017); (5) even if Johnson allows due
process vagueness challenges to mandatory guidelines, it
represents a procedural and not substantive rule which does
not apply retroactively to seek collateral relief; (6)
California Penal Code § 211 remains an enumerated crime
of violence independent of the residual clause therefore the
Court had an independent basis upon which to find that
Petitioner qualified as a career offender. (Oppo at 2).
Waiver and Successiveness
of his plea agreement, Petitioner waived the right to appeal
and to collaterally attack his judgment and sentence under 28
U.S.C. § 2255 unless the Court imposed a sentence in
excess of the high end of the guideline
range. (Plea Agreement at 14, No.
02-cr-0624 [ECF NO. 53]; Plea Agreement at 14, No. 02-cr-0625
[ECF NO. 144]). The Court previously found that
Petitioner's waiver of his appellate and collateral
attack rights was knowing and voluntary, and that none of the
potential limitations to the validity of his waiver were
applicable. (Order at 3 [ECF NO. 482.]) Petitioners waiver
would therefore appear to foreclose his right to bring this
challenge, however the 9thCircuit in United
States v. Torres, 828 F.3d 1113, 1125 (9th
Cir. 2016), held that a defendant's waiver does not bar
an appeal if the defendant was sentenced under a Guidelines
provision that has since been found to be unconstitutionally
vague. Although the reasoning of the Ninth Circuit is sparse
in Torres, the Court finds that Petitioner's
prior waiver does not prohibit him from challenging his
sentence to the extent it was enhanced under the now
unconstitutional residual clause of § 4B1.2.
previously noted, Petitioner has likewise overcome the hurdle
to filing a second or successive petition pursuant to section
2255 in light of the Ninth Circuit's authorization under
28 U.S.C. § 2255 (h)(2) finding that Petitioner's
motion “makes a prima facie showing for relief under
Johnson v. United States.” (Wood v. United
States, No. 16-71500 (Dec. 22, 2016).) The appellate
Court further noted that “Johnson announced a
new substantive rule that has retroactive effect in cases on
collateral review, ” citing Welch v. United
States, 136 S.Ct. 1257, 1264-68 (2016). (Id.)
petitioner must first raise his claim on direct appeal before
challenging his sentence under § 2255 or he procedurally
defaults the claim. United States v. Ratigan, 351
F.3d 957, 962 (9th Cir.2003). A procedural default may be
overcome and a petitioner may raise the claim in a habeas
petition “‘only if the defendant can first
demonstrate either cause and actual prejudice ...