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United States v. Lewis

United States District Court, D. Oregon, Medford Division

January 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TIMOTHY ROGER LEWIS, Defendant.

          OPINION & ORDER

          ANN AIKEN, UNITED STATES DISTRICT JUDGE

         The matter comes before the Court on Defendant Timothy Roger Lewis's Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255. ECF No. 27. The Court finds that this matter is appropriate for resolution without a hearing and the motion is GRANTED. Defendant's sentence is VACATED and Defendant shall be transported for resentencing.

         BACKGROUND

         In July 1999, Lewis entered a guilty plea to a charge of Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). ECF No. 16; Presentence Report ("PSR") ¶¶ 1-2, Def. Mot. Ex. A, at 1. In November 1999, this Court sentenced Lewis to 188 months, which included the Armed Career Criminal Act ("ACCA") mandatory minimum sentence of 180 months. ECF No. 22; Def. Mot. Ex. B.

         At the time of his plea and sentencing, Lewis had the following relevant predicate convictions for purposes of the ACCA:

1. A North Dakota conviction for Robbery in Stuteman County District Court. Judgment was entered December 27, 1976. PSR ¶ 26.
2. A North Dakota conviction for Robbery While Possessing/Pretending to Possess a Dangerous Weapon in Morton County District Court. Judgment was entered January 8, 1979. PSR¶28.
3. A North Dakota conviction for Robbery in Burleigh County District Court. Judgment was entered on January 11, 1980. PSR ¶ 29.[1]

         Lewis did not file a direct appeal of his sentence. In 2015, the United State Supreme Court issued its decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 2557 (2015) (Johnson II), which held that the residual clause of the Armed Career Criminal Act was void for vagueness. In 2016, the Supreme Court held that the Johnson II decision was retroactively applicable to cases on collateral review. Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 1268(2016). This motion followed.

         LEGAL STANDARDS

         Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:

[T]he 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).

         To warrant relief, a petitioner must demonstrate that the error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.").

         A petitioner seeking relief under § 2255 must file his 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 became 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).

         Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief" United States v. Blaylock,20 F.3d 1458, 1465 (9th Cir. 1994) (alteration and emphasis in original) (quoting 28 U.S.C. § 2255). In determining whether a § 2255 motion requires a hearing, "[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Withers,638 F.3d 1055, 1062 (9th Cir. 2011) (alteration in original, internal quotation marks and citation omitted). A district court may dismiss a § 2255 motion based on a facial review of the record "only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are 'palpably incredible or patently frivolous.'" Id. at 1062-63 (quoting United ...


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