United States District Court, S.D. California
WILLIAM Q. HAYES, UNITED STATES DISTRICT JUDGE.
matter comes before the Court is the Petition pursuant to 28
U.S.C. § 2255 to vacate sentence filed by the
Defendant/Petitioner. (ECF No. 70).
April 2, 2012, Defendant Gilbert Paul Johnson was charged by
complaint with importing cocaine into the United States in
violation of 21 U.S.C. §§ 952, 960.
April 26, 2012, Defendant waived indictment and was charged
by information with importing cocaine and methamphetamine
into the United States in violation of 21 U.S.C. §§
31, 2012, Defendant pled guilty to the charges in the
21, 2014, the Court sentenced Defendant to 37 months custody
and 5 years’ supervised release on each count, with the
sentences to run concurrently.
27, 2015, the United States Probation Office
(“USPO”) filed a Petition for Warrant or Summons
for Offender Under Supervision (“First Petition”)
alleging that Defendant violated the terms of his supervised
release by committing violations of the California Penal
Code. In the First Petition, the USPO made two allegations of
noncompliance: first, that on or about July 12, 2015, Johnson
inflicted injury on his cohabitant in violation of California
Penal Code (“PC”) § 273.5; and second, that
on or about July 12, 2015, Johnson was a felon in possession
of a stun gun in violation of PC § 22610.
August 20, 2015, Defendant admitted to the allegations and
the Court sentenced him to 3 months’ custody and 33
months’ supervised release.
September 13, 2016, the USPO filed another Petition for
Warrant or Summons for Offender Under Supervision
(“Second Petition”) alleging that Defendant
violated the terms of his supervised release by committing a
violation of the California Penal Code. In the Second
Petition, the USPO made one allegation of noncompliance,
specifically, that on or about August 20, 2016, Johnson
committed assault with a deadly weapon, in violation of PC
§ 245(a)(1). At the hearing on March 6, 2017, Johnson
admitted to the violation alleged in the Second Petition and
the Court sentenced him to 24 months’ custody on each
count, with count 1 to run concurrently to count 2, but both
counts to run consecutively to Johnson’s sentence in
his state court case. Defendant did not file an appeal of his
22, 2019, Defendant filed a motion to vacate sentence under
28 U.S.C. § 2255 challenging the March 6, 2017 sentence.
Defendant asserts that inaccurate information was provided by
the California Department of Corrections and Rehabilitation
regarding his good time earning rate which influenced the
decision of this district court in imposing the sentence for
violation of his supervised release. Defendant asserts that
this court felt compelled to increase his sentence based on
inaccurate information regarding his state sentence.
August 12, 2019, Plaintiff United States filed an opposition
to the motion to vacate on the grounds that the motion is
procedurally barred and untimely. Plaintiff United States
further contends that relief under 28 U.S.C. § 2255 is
not available because Defendant fails to identify any
constitutional or legal defect in his sentence.
U.S.C. §2255 provides that “A prisoner under
sentence of a court established by Act of Congress 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, 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