United States District Court, D. Hawaii
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY AND DECLINING TO ISSUE CERTIFICATE
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
Jorge Saenz is serving a 136-month prison term, having pled
guilty to having possessed with intent to distribute 50 grams
or more of methamphetamine and carrying a firearm during and
in relation to a drug trafficking crime. Relying on
Johnson v. United States, 135 S.Ct. 2551 (2015),
Saenz now seeks to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. He argues that he should not
have been convicted or sentenced under 18 U.S.C. §
924(c) because that statute allegedly includes
unconstitutionally vague references to a “crime of
violence.” This court denies Saenz's petition
without an evidentiary hearing, concluding that the term
“crime of violence” was irrelevant to his
conviction or sentence. This court also declines to issue a
certificate of appealability.
STANDARD OF REVIEW.
28 U.S.C. § 2255, a court may grant relief to a federal
prisoner who challenges the imposition or length of his or
her incarceration on any of the following four grounds: (1)
that the sentence was imposed in violation of the
Constitution or laws of the United States; (2) that the court
was without jurisdiction to impose such sentence; (3) that
the sentence was in excess of the maximum authorized by law;
or (4) that the sentence is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a). It is not entirely clear
whether Saenz is challenging both his § 924(c)
conviction and his sentence, but the court assumes for
purposes of this order that he is challenging both. To obtain
relief from a conviction under § 2255, a petitioner must
demonstrate that an error of constitutional magnitude had a
substantial and injurious effect on the guilty plea or the
jury's verdict. Brecht v. Abrahamson, 507 U.S.
619, 637-38 (1993).
petitioner must file his or her § 2255 motion within the
one-year statute of limitations set forth in § 2255(f).
The limitations period runs one year from the latest of four
dates: (1) when the judgment of conviction becomes final; (2)
when the impediment to making a motion created by
governmental action in violation of the Constitution or laws
of the United States is removed, if the movant was prevented
from making a motion by such governmental action; (3) when
the right asserted is initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; and (4) when the facts supporting the
claim or claims presented could have been discovered through
the exercise of due diligence. 28 U.S.C. § 2255(f).
§ 2255 petition cannot be based on a claim that has
already been disposed of by the underlying criminal judgment
and ensuing appeal. As the Ninth Circuit stated in Olney
v. United States, 433 F.2d 161, 162 (9th Cir. 1970),
“Having raised this point unsuccessfully on direct
appeal, appellant cannot now seek to relitigate it as part of
a petition under § 2255.”
when a § 2255 petitioner has not raised an alleged error
at trial or on direct appeal, the petitioner is procedurally
barred from raising an issue in a § 2255 petition if the
issue could have been raised earlier, unless the petitioner
can demonstrate both “cause” for the delay and
“prejudice” resulting from the alleged error. In
United States v. Frady, 456 U.S. 152, 167-68 (1982),
the Court said, “[T]o obtain collateral relief based on
trial errors to which no contemporaneous objection was made,
a convicted defendant must show both (1) ‘cause'
excusing his double procedural default, and (2) ‘actual
prejudice' resulting from the errors of which he
complains.” Accord Davis v. United States, 411
U.S. 233, 242 (1973). To show “actual prejudice,
” a § 2255 petitioner “must shoulder the
burden of showing, not merely that the errors at his trial
created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.” Frady, 456 U.S. at 170.
may dismiss a § 2255 petition if “it plainly
appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not
entitled to relief.” Rule 4(b), Section 2255 Rules. A
court need not hold an evidentiary hearing if the allegations
are “palpably incredible” or “patently
frivolous” or if the issues can be conclusively decided
on the basis of the evidence in the record. See
Blackledge v. Allison, 431 U.S. 63, 76 (1977); see
also United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th
Cir. 1998) (noting that a “district court has
discretion to deny an evidentiary hearing on a § 2255
claim where the files and records conclusively show that the
movant is not entitled to relief”).
November 7, 2008, Saenz agreed in a telephone conversation to
sell a half-pound of crystal methamphetamine to a person who,
unbeknownst to Saenz, was cooperating with the Government.
See Memorandum of Plea Agreement, ECF No. 31, PageID
# 54. That day, at around 2:45 p.m., law
enforcement agents saw Saenz drive a car to the agreed-upon
location. See id. The agents stopped Saenz's car
and arrested Saenz and the passenger in his car. See
id., PageID # 55. During searches incident to the
arrests, the agents seized a loaded .380 caliber
semi-automatic pistol, a plastic bag containing approximately
one-half ounce of a substance that was later confirmed to be
methamphetamine, and a cup containing approximately 2 ounces
of a substance that was later confirmed to be
methamphetamine. See id.
November 19, 2008, the Government filed an indictment against
Saenz, charging him with possessing with intent to distribute
50 grams or more of methamphetamine in violation of 18 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A) (Count 1) and with
carrying a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A) (Count 2). See Indictment, ECF No. 11,
PageID #s 18-19. On April 24, 2009, Saenz pled guilty to both
counts pursuant to a plea agreement. See ECF No. 31,
PageID #s 30-31. This court sentenced Saenz to 102 months for
Count 1, and to 54 months for Count 2 running consecutively
to the sentence for Count 1. See ECF No. 39. His
total prison time was thus 156 months. See Id.
Judgment was entered on October 23, 2009. See ECF
No. 43. In his plea agreement, Saenz had limited his right to
appeal, and he filed no appeal.
March 19, 2015, this court reduced Saenz's sentence under
18 U.S.C. § 3582(c)(2) based on the retroactive
application of Amendment 782 to the drug quantity
calculations in the Sentencing Guidelines. See Order
Regarding Motion for Sentence Reduction Pursuant to 18 U.S.C.
§ 3582(c)(2), ECF No. 46, PageID # 124. Saenz's
reduced sentence for Count 1 was 82 months in prison. See
id. The consecutive term of 54 months on Count 2
remained the same, meaning that the new sentence provided for
a total of 136 months in prison. See id.
22, 2016, Saenz mailed a letter to this court stating his
intent to file a motion under 28 U.S.C. § 2255 based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
See Letter from Jorge Saenz, ECF No. 47, PageID #
125. Johnson, decided on June 26, 2015, held that
“imposing an increased sentence under the residual
clause of the Armed Career Criminal Act violates the
Constitution's guarantee of due process.”
Johnson, 135 S.Ct. at 2563. The “residual
clause” analyzed in Johnson appears in 18
U.S.C. § 924(e). See id. at 2555. Section
924(e)(1) provides for enhanced penalties for a person
convicted of violating 18 U.S.C. § 922(g) if the person
has three prior convictions for either a “violent
felony” or a serious drug offense. See id.
Johnson was convicted under § 922(g) of being a felon in
possession of a firearm, and he had three prior convictions
for a “violent felony.” See id. at 2556.
The term “violent felony” was defined in §
924(e)(2)(B) as including a felony having “as an
element the use, attempted use, or threatened use by physical
force, ” a felony that was “burglary, arson, or
extortion, [or] involves the use of explosives, ” or a
felony that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
See id. at 2555-56. The Supreme Court concluded that
the “otherwise involves” language, which it
called the “residual clause, ” was
unconstitutionally vague. See id. at 2557-60. The
Court therefore held that Johnson's sentence should not
have been enhanced under the residual clause. See
id. at 2563.
24, 2016, Saenz, proceeding pro se, placed his
Johnson-related § 2255 motion in the prison
mail system. See Saenz's Motion Under 28 U.S.C.
§ 2255, ECF No. 49, PageID #s 141-43. This court
received and filed his motion on June 27, 2016. See
id., PageID # 129. In his motion, Saenz contends that
the language of 18 U.S.C. § 924(c) and of the sentencing
guidelines is unconstitutionally vague insofar as that
language uses the term “crime of violence.”
See id., PageID # 133. Saenz appears to argue that
the Supreme Court's holding in Johnson nullifies
as unconstitutionally vague ...