Opinion
Case No.: 3:16-cv-01470-GPC
07-17-2017
Ervin Morelli, Petitioner, v. United States of America, Respondent.
Related Case No.: 3:15-cr-00029-GPC-2 ORDER DENYING PETITIONER'S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
[ECF. No. 78.]
Before the Court is Petitioner Ervin Morelli's ("Petitioner's" or "Morelli's") motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The motion was filed on June 13, 2016. (Dkt. No. 78.) Respondent United States of America ("Respondent" or "Government") opposes. (Dkt. No. 84.) For the reasons set forth below, the Court DENIES Petitioner's 28 U.S.C. § 2255 motion.
All citations to the record are based upon the pagination generated by the CM/ECF system in 3:15-cr-00029-GPC-2.
BACKGROUND
On or about December 9, 2014, Morelli transported, moved, or attempted to transport or move, aliens within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). (Dkt. No. 1.) Morelli pleaded guilty to the § 1324 offense on February 24, 2015. (Dkt. No. 40.) Morelli was sentenced on May 29, 2015 with a guidelines calculation that incorporated an adjustment under USSG § 2L1.1(b)(6). (Dkt. No. 68.) He was sentenced to a below-guidelines term of thirty months in custody and three years of supervised release. (Id.)
Morelli inaccurately stated that his sentence incorporated a guidelines adjustment under USSG § 2K2.1(A) in his motion. (Dkt. No. 78 at 1.) His reply brief clarified that the relevant USSG section is USSG § 2L1.1(b)(6). (Dkt. No. 86 at 1.)
On June 13, 2016, while in custody, Morelli timely filed the instant § 2255 motion to vacate, set aside, or correct the sentence pursuant to the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). (Dkt. No. 78.) Petitioner argues that the Court's imposition of an increased sentence under USSG § 2L1.1(b)(6) violated his due process rights under the Fifth Amendment. (Id.) Specifically, Morelli contends that (1) USSG § 2L1.1(b)(6) "now falls under the Residual Clause" of the Armed Career Criminal Act ("ACCA"); (2) Petitioner's prior state convictions do not qualify as predicate offenses for ACCA enhancement; (3) and Johnson retroactively applies to his sentence. (Id.)
A petitioner can file a 28 U.S.C. § 2255 motion if he is a "prisoner in custody under sentence of a court established by Act of Congress." 28 U.S.C. § 2255(a). A petitioner on supervised release may also file a § 2255 motion even though he is not in physical custody of the United States. Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005) ("[A] habeas petitioner remains in the custody of the United States while on supervised release."). It is timely if it is filed under the one-year period of limitation from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1).
On August 3, 2016, the Court appointed the Federal Defenders of San Diego, Inc. to represent Morelli. (Dkt. No. 79.) Petitioner's counsel subsequently notified the Court that after thoroughly researching the case, counsel did not intend to file any supplement to Morelli's § 2255 motion or present any additional argument or legal authority on Morelli's behalf. (Dkt. No. 83.)
On October 7, 2016, the Government filed an opposition. (Dkt. No. 84.) Morelli filed a reply, nunc pro tunc to October 28, 2016. (Dkt. No. 86.)
Morelli's supervised release term commenced on February 24, 2017. (Dkt. No. 87.)
LEGAL STANDARD
28 U.S.C. § 2255 allows a court to "vacate, set aside, or correct the sentence" of a federal prisoner on "the ground that the 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). Where a petitioner exhausts or waives his direct appeal, the Court is entitled to presume that he stands fairly convicted. United States v. Frady, 456 U.S. 152, 164 (1982). However, § 2255 warrants relief if a prisoner alleges a constitutional or jurisdictional error, or a "fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
DISCUSSION
Morelli contends he is entitled to habeas relief in light of the Supreme Court's decision in Johnson. (Id.) His claims fail for the reasons set forth below.
A. Johnson is Inapplicable.
In Johnson, the Supreme Court examined language from the ACCA, which provides for a mandatory sentence of fifteen years of imprisonment for a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e). There are three "clauses" in the statute defining what type of prior crime qualifies as a "violent felony": (1) the "elements" clause: "has an element the use, or attempted use, or threatened use of physical force against the person of another"; (2) the "enumerated offenses" clause: "is burglary, arson, or extortion, [or] involves use of explosives"; and (3) the "residual" clause: "or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).
The Court held that the ACCA's residual clause is void for vagueness, and that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process." Johnson, 135 S. Ct. at 2563. Put simply, a statute can be void for vagueness "'if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits' or 'if it authorizes or even encourages arbitrary and discriminatory enforcement.'" Id. at 2566 (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). Rather than "gauging the riskiness of conduct in which an individual defendant engages on a particular occasion," the residual clause "requires application of the 'serious potential risk' standard to an idealized ordinary case of the crime." Id. at 2561. No "principled and objective standard" could identify what crimes fell under its language. Id. at 2557. Thus, the residual clause violates due process, as it "both denies fair notice to defendants and invites arbitrary enforcement by judges." Id.
Johnson is inapplicable to Morelli's case. First, Morelli was not sentenced under the ACCA. Morelli pleaded guilty to charges under 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). (Dkt. No. 40.) Second, he received an increased sentence pursuant to USSG § 2L1.1(b)(6), not the ACCA's residual clause. (Dkt. No. 68.) The retroactive holding in Johnson does not provide Morelli with a vehicle for relief.
B. USSG § 2L1.1(b)(6) is Not Void for Vagueness.
Morelli argues that USSG § 2L1.1(b)(6) is void for vagueness. In other words, he argues he is entitled to habeas relief because the residual clause analysis in Johnson applies equally to USSG § 2L1.1(b)(6)'s "specific offense characteristics" clause. (Dkt. No. 40.)
USSG § 2L1.1(b)(6) provides: "If the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person, increase by 2 levels, but if the resulting offense level is less than level 18, increase to level 18." --------
First, the Supreme Court recently held in Beckles v. United States that the Federal Sentencing Guidelines "are not subject to vagueness challenges under the Due Process clause." 137 S. Ct. 886, 890 (2017). Unlike the ACCA, "the advisory Guidelines do not fix the permissible range of sentences," but "merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." Id. at 892. Here, this Court exercised its discretion in increasing Morelli's sentence under USSG § 2L1.1(b)(6). (Dkt. No. 68.)
Moreover, while USSG § 2L1.1(b)(6) uses the phrase "substantial risk," the Supreme Court expressly noted that its holding in Johnson "does not put other criminal laws that use terms such as 'substantial risk' in doubt, because those laws generally require gauging the riskiness of an individual's conduct on a particular occasion, not the riskiness of an idealized ordinary case of the crime." 135 S. Ct. at 2554; see also id. at 2561 ("As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct."). Therefore, Morelli's claim that USSG § 2L1.1(b)(6) is void for vagueness does not afford him habeas relief.
C. Morelli's Additional Claims Fail.
Morelli makes additional contentions in his reply brief. He claims he was (1) a passenger when the car was pulled over; and (2) never given notice by defense counsel of the sentence enhancement and would have otherwise gone to trial. (Dkt. No. 86.) Both of Morelli's additional claims lack merit. First, Morelli admitted to knowingly transporting or moving, or attempting to transport or move aliens to help them remain in the United States, and accordingly pleaded guilty to 8 U.S.C. § 1324(a)(1 )(A)(ii). (Dkt. No. 40.) Upon executing the plea agreement, Morelli signed a waiver certifying he was given notice of the applicable sentencing guidelines and that sentencing is in the discretion of the Court. (Id.) He also signed the plea agreement, indicating that he was aware any sentence prediction made by defense counsel was merely a recommendation and not binding. (Id.) Therefore, Morelli's belated contentions are meritless.
D. Evidentiary Hearing
"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the Court must hold an evidentiary hearing on the merits of a § 2255 motion. 28 U.S.C. § 2255(b). However, a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Rodrigues-Vega, 797 F.3d 781, 791 (9th Cir. 2015). An evidentiary hearing is unnecessary if the allegations, "when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (internal quotation marks omitted).
Here, for the aforementioned reasons, Morelli's allegations clearly do not state a claim for relief. Accordingly, the Court finds that Petitioner's claims do not merit an evidentiary hearing.
E. Certificate of Appealability
Pursuant to 28 § U.S.C. 2253 (c) a petitioner may not appeal from a final order in a proceeding under § 2255, or be granted a Certificate of Appealability ("COA") unless he has "made a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional claim and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 478 (2000).
Here, jurists of reason would not disagree with the Court's ruling that Morelli's § 2255 petition lacks merit. Accordingly, the Court declines to issue a COA. / / / /
CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. The Clerk of the Court shall close the case.
IT IS SO ORDERED. Dated: July 17, 2017
/s/_________
Hon. Gonzalo P. Curiel
United States District Judge