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Troiano v. United States

United States District Court, D. Hawaii

February 5, 2018

JAMES TROIANO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING, IN PART, AND DENYING, IN PART, PETITIONER'S REQUEST FOR A CERTIFICATE OF APPEALABILITY (ECF NO. 346)

          Mellon Gillmor, United States District Judge.

         On August 24, 2006, the Court sentenced Petitioner Troiano to a term of imprisonment of 17 years as to Count 1 (conspiracy to commit a Hobbs Act robbery), Count 2 (Hobbs Act robbery), and Count 4 (felon in possession of a firearm), all terms to be served concurrently with each other. Defendant was also sentenced to a 7 year term of imprisonment as to Count 3 (carrying a firearm in relation to a crime of violence), to be served consecutively to the 17 year terms imposed for Counts 1, 2, and 4, for a total of 24 years imprisonment. (Judgment, ECF No. 218).

         Nearly ten years later, on May 26, 2016, Petitioner filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody pursuant to the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF No. 324).

         On August 25, 2017, the Court issued an ORDER GRANTING, IN PART, AND DENYING, IN PART, PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY. (ECF No. 340).

         The Court held that Petitioner's sentence as to Count 4, for Felon in Possession of a Firearm, was no longer subject to sentencing enhancement pursuant to the Armed Career Criminal Act following the United States Supreme Court's decision in Johnson v. United States. The Court denied all other claims in Petitioner's Section 2255 Motion.

         The Court declined to exercise its discretion to conduct a full resentencing. The Court corrected Petitioner's 17 year imprisonment sentence as to Count 4, with 5 years of supervised release, to a term of imprisonment of 10 years, with a term of supervised release of 3 years. All other aspects of Petitioner's sentence remain unchanged. The Court issued an Amended Judgment.

         On December 14, 2017, Petitioner filed a Request for a Certificate of Appealability.

         Petitioner's Request for a Certificate of Appealability (ECF No. 346) is GRANTED, IN PART, AND DENIED, IN PART.

         PROCEDURAL HISTORY

         On October 5, 2005, the Government filed a four-count Superseding Indictment as to Petitioner Troiano. (ECF No. 59). The Superseding Indictment charged Petitioner, as follows:

Count 1: knowingly and willfully conspiring with others to obstruct and affect commerce and the movement of articles and commodities in such commerce, by robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Conspiracy to commit a Hobbs Act robbery);
Count 2: knowingly and willfully obstructing and affecting commerce and the movement of articles and commodities in such commerce, by robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Hobbs Act robbery);
Count 3: knowingly carrying and brandishing a firearm during and in relation to a crime of violence, to wit: conspiracy and Hobbs Act robbery as charged in Counts 1 and 2 of this Superseding Indictment in violation of 18 U.S.C. § 924(c); and,
Count 4: having been convicted of a crime punishable for a term exceeding one year, did knowingly possess in and affecting commerce a firearm in violation of 18 U.S.C. §§ 922(g)(1); 924(e).

(ECF No. 59).

         On April 19, 2006, after 7 days of trial, the jury found Petitioner guilty on all 4 counts in the Superseding Indictment. (ECF Nos. 181, 183).

         On August 24, 2006, the Court sentenced Petitioner to a term of imprisonment of 17 years as to each of Counts 1, 2, and 4 to be served concurrently with each other, followed by a 7 year term as to Count 3, to be served consecutively to the terms imposed for Counts 1, 2, and 4, for a total of 24 years imprisonment. (Judgment, ECF No. 218).

         On December 12, 2007, the Ninth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. (ECF No. 273).

         On April 14, 2008, the United States Supreme Court denied Petitioner's petition for certiorari. Troiano v. United States, 552 U.S. 1330 (2008).

         On April 14, 2009, Petitioner filed a MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY. (ECF No. 283).

         On August 19, 2009, the Court issued an ORDER DENYING JAMES TROIANO'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255. (ECF No. 298).

         Six years later, on June 26, 2015, the United States Supreme Court issued its opinion in Johnson v. ...


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