United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
E. Jones, United States District Judge
James Wallace (Wallace), filed a motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255. [ECF #
23] Specifically, he moved to vacate the judgment in case
3:10-cr-00052-JO and to correct his sentence imposed under
the career offender guideline, U.S.S.G. § 4B1.1 citing
Johnson v. United States, 135 S.Ct. 2551 (2015).
Thereafter, the government filed a motion to dismiss
Wallace's motion citing Beckles v. United
States, 137 S.Ct. 886 (2017). [ECF # 30] Because I find
Beckles to be controlling precedent, I GRANT the
government's motion to dismiss.
2255 permits a prisoner in custody 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).
Defendant's Convictions and Sentencing
No. 3:10-cr-00052-JO, Wallace plead guilty to seven counts of
unarmed bank robbery in violation of 18 U.S.C. §
2113(a). In Case No. 3:11-cr-00075-JO, he plead guilty to
attempting to escape the federal correctional facility.
Pursuant to the plea agreements in these cases, the parties
stipulated that Wallace qualified as a career offender under
the United States Sentencing Guidelines
("Guidelines"), based on Wallace's earlier
convictions for burglary in the first degree and unarmed bank
robbery. The presentence reports also recommended that he be
sentenced as a career offender.
sentencing in the seven bank robberies case, the career
offender guideline produced a base offense level of 32 and a
total offense level of 29 after a three level reduction for
acceptance of responsibility. With a criminal history
category VI, Wallace's advisory guideline range was
151-188 months. If the career offender guideline had not
applied, the guideline range would have been 92-115 months
with a total offense level of 26 and a criminal history
category IV. I imposed a low range 151 month sentence.
sentencing in the attempted escape case, the career offender
guideline produced a total offense level of 14 and a criminal
history category VI (up from level 11 and category IV without
the career offender enhancement) resulting in a guideline
range of 37 - 46 months. Judge Brown varied below the career
offender range and imposed a concurrent 24 month sentence.
did not appeal his conviction or sentence in either case.
Legal Developments: Johnson ...