United States District Court, D. Oregon
J. Williams, United States Attorney and Jennifer Martin,
Assistant United States Attorney, District of Oregon, Of
Attorneys for Plaintiff.
Stephen R. Sady, Chief Deputy Federal Defender and Elizabeth
G. Daily, Assistant Federal Public Defender, Federal Public
Defender's Office For The District Of Oregon, Of
Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, United States District Judge
the Court is Timothy Kana Dawson's motion for relief
under 28 U.S.C. § 2255, seeking to vacate his 60-month
mandatory consecutive sentence imposed for possessing a
firearm in furtherance of a crime of violence in violation of
18 U.S.C. § 924(c)(1)(A). (Count 2, Case No.
3:03-cr-410). For the reasons given below, his motion is
2255 permits a prisoner in custody under sentence to 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).
Section 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.
Baylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (emphasis in
original) (quoting 28 U.S.C. § 2255). A motion pursuant
to § 2255 must be filed within one year from the date on
which a petitioner's conviction becomes final, unless an
exception applies. Id. § 2255(f)(1). One
exception provides that a motion is timely if (1) it
“assert[s] . . . [a] right . . . newly recognized by
the Supreme Court, ” id. § 2255(f)(3),
(2) it is filed within one year from “the date on which
the right asserted was initially recognized by the Supreme
Court, ” id. § 2255(f)(3), and (3) the
Supreme Court or controlling Court of Appeals has declared
the right retroactively applicable on collateral review,
Dodd v. United States, 545 U.S. 353, 358-59 (2005).
Only the Supreme Court may “recognize” a new
right under § 2255(f)(3). Dodd, 545 U.S. at
357-59. In order to show that his or her claim relies on a
new rule of constitutional law, a movant must show that
“(1) he or she was sentenced in violation of the
Constitution and that (2) the particular constitutional rule
that was violated is ‘new, ' [and] was
‘previously unavailable'” United States
v. Geozos, 870 F.3d 890, 895 (9th Cir. 2017).
February 24, 2005, Dawson pleaded guilty to one count of
armed bank robbery, in violation of 18 U.S.C. § 2113(a)
and (d) (Count 1 in Case No. 3:04-cr-010), four counts of
unarmed bank robbery, in violation of 18 U.S.C. §
2113(a) (Counts 2 through 4 in Case No. 3:04-cr-010 and Count
1 in Case No. 3:03-cr-410), one count of possessing a firearm
in furtherance of a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(a) (Count 2 in Case No. 3:03-cr-410),
and one count of escape, in violation of 18 U.S.C. §
751(a) (Count 1 of the information in Case No. 3:05-cr-073).
On November 1, 2005, Dawson was sentenced to five concurrent
sentences of 202 months for each of the substantive robbery
offenses, a concurrent 60-month sentence for the escape
charge, and a mandatory consecutive sentence of 60 months for
the § 924(c) violation.
argues that he is entitled to resentencing on two independent
grounds. First, Dawson argues that the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015) (Johnson II), invalidated his mandatory
consecutive sentence under § 924(c). Second, Dawson
argues that the Supreme Court's decision in Dean v.
United States, 137 S.Ct. 1170 (2017), entitles him to a
new sentencing hearing in which the sentencing judge has
discretion to consider the suitability of his aggregate