Opinion
Case No.: 09cr1442-MMA-1 Related Case No.: I6cv1769-MMA
04-17-2017
UNITED STATES OF AMERICA, Plaintiff, v. HUNG VAN HUYNH (1), Defendant.
ORDER DENYING DEFENDANT'S MOTION TO VACATE UNDER 28 U.S.C. § 2255
[Doc. No. 82]
On December 1, 2011, pursuant to a written plea agreement, Defendant Hung Van Hyunh pleaded guilty to count four of a Superseding Indictment for distributing 220.8 grams of cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, section 841(a)(1), and Title 18, section 2. See Doc. No. 53. The Court sentenced Defendant on June 4, 2012 to a term of 180 months imprisonment. See Doc. No. 64. Defendant filed a successive motion pursuant to 28 U.S.C. § 2255, challenging his classification as a career offender under the United States Sentencing Guidelines in light of Johnson v. United States, 576 U.S. ---, 135 S. Ct. 2551 (2015). See Doc. No. 82. The government filed a response in opposition to Defendant's motion. See Doc. No. 87.
The United States Court of Appeals for the Ninth Circuit granted Defendant's application for authorization to file a successive 2255 motion. See Doc. No. 86-1.
In Johnson, the Supreme Court held the residual clause in the definition of a "violent felony" in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) ("ACCA"), to be unconstitutionally vague and a violation of the Due Process Clause. 135 S. Ct. at 2557. Defendant was not sentenced under the ACCA's residual clause; he was sentenced based on the career offender enhancement provision of the Sentencing Guidelines. Nonetheless, Defendant argues that Johnson's holding is applicable, because the ACCA's residual clause is identical in language to Section 4B1.2's residual clause. However, on March 6, 2017, the Supreme Court ruled that Johnson's holding does not extend to the Sentencing Guidelines, in so far as "the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause." Beckles v. United States, 137 S. Ct. 886, 197 L. Ed. 2d 145 (2017). Under Beckles, "it plainly appears from the face of the motion" that Defendant "is not entitled to relief." See Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. As such, Defendant's 2255 motion must be denied.
Subsequent to the issuance of Beckles, Defendant requested thirty (30) days in which to review the Supreme Court's decision and submit a reply brief. See Doc. No. 88. Defendant also asked the Court to defer ruling on his 2255 motion in the interim. Id. More than thirty days has passed, and to date, Defendant has not filed any additional briefing. --------
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A defendant must obtain a certificate of appealability before pursuing any appeal from a final order in a Section 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a Section 2255 motion is based on the merits of the claims in the motion, a district court should issue a certificate of appealability only when the appeal presents a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The defendant must show that reasonable jurists could debate whether the issues should have been resolved differently or are "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983), superseded on other grounds by 28 U.S.C. § 2253(c)(2); see also Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009). Because Defendant has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not debate the denial of Defendant's motion, the Court declines to issue a certificate of appealability.
CONCLUSION
Based on the foregoing, the Court DENIES Defendant's 2255 motion. The Court DECLINES to issue a certificate of appealability. The Clerk of Court is instructed to enter judgment in accordance herewith and close the related civil case.
IT IS SO ORDERED. DATE: April 17, 2017
/s/_________
HON. MICHAEL M. ANELLO
United States District Judge