United States District Court, D. Oregon, Medford Division
OPINION & ORDER
AIKEN, UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
3. A North Dakota conviction for Robbery in Burleigh County
District Court. Judgment was entered on January 11, 1980. PSR
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
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
[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).
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.").
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).
§ 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 ...