Morelli v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. The Clerk of the Court shall close the case. Signed by Judge Gonzalo P. Curiel on 7/17/17.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Ervin Morelli,

Case No.: 3:16-cv-01470-GPC;
Related Case No.: 3:15-cr-00029-GPC-2

Petitioner,

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ORDER DENYING PETITIONER’S
28 U.S.C. § 2255 MOTION TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE

v.
United States of America,
Respondent.

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[ECF. No. 78.]

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Before the Court is Petitioner Ervin Morelli’s (“Petitioner’s” or “Morelli’s”)

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motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The motion was

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filed on June 13, 2016. (Dkt. No. 78.)1 Respondent United States of America

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(“Respondent” or “Government”) opposes. (Dkt. No. 84.) For the reasons set forth

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below, the Court DENIES Petitioner’s 28 U.S.C. § 2255 motion.

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BACKGROUND

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On or about December 9, 2014, Morelli transported, moved, or attempted to

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transport or move, aliens within the United States in violation of 8 U.S.C. §

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All citations to the record are based upon the pagination generated by the CM/ECF system in
3:15-cr-00029-GPC-2.
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3:16-cv-01470-GPC; Related Case No.: 3:15-cr-00029-GPC-2

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1324(a)(1)(A)(ii) and (v)(II). (Dkt. No. 1.) Morelli pleaded guilty to the § 1324 offense

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on February 24, 2015. (Dkt. No. 40.) Morelli was sentenced on May 29, 2015 with a

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guidelines calculation that incorporated an adjustment under USSG § 2L1.1(b)(6).2 (Dkt.

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No. 68.) He was sentenced to a below-guidelines term of thirty months in custody and

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three years of supervised release. (Id.)

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On June 13, 2016, while in custody, Morelli timely filed the instant § 2255 motion

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to vacate, set aside, or correct the sentence pursuant to the Supreme Court’s decision in

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Johnson v. United States, 135 S. Ct. 2551 (2015).3 (Dkt. No. 78.) Petitioner argues that

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the Court’s imposition of an increased sentence under USSG § 2L1.1(b)(6) violated his

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due process rights under the Fifth Amendment. (Id.) Specifically, Morelli contends that

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(1) USSG § 2L1.1(b)(6) “now falls under the Residual Clause” of the Armed Career

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Criminal Act (“ACCA”); (2) Petitioner’s prior state convictions do not qualify as

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predicate offenses for ACCA enhancement; (3) and Johnson retroactively applies to his

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sentence. (Id.)

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On August 3, 2016, the Court appointed the Federal Defenders of San Diego, Inc.

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to represent Morelli. (Dkt. No. 79.) Petitioner’s counsel subsequently notified the Court

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that after thoroughly researching the case, counsel did not intend to file any supplement

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to Morelli’s § 2255 motion or present any additional argument or legal authority on

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Morelli’s behalf. (Dkt. No. 83.)

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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.)

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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.)
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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).
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3:16-cv-01470-GPC; Related Case No.: 3:15-cr-00029-GPC-2

Morelli’s supervised release term commenced on February 24, 2017. (Dkt. No.

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87.)

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LEGAL STANDARD
28 U.S.C. § 2255 allows a court to “vacate, set aside, or correct the sentence” of a

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federal prisoner on “the ground that the sentence was imposed in violation of the

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Constitution or laws of the United States, or that the court was without jurisdiction to

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impose such sentence, or that the sentence was in excess of the maximum authorized by

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law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). Where a

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petitioner exhausts or waives his direct appeal, the Court is entitled to presume that he

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stands fairly convicted. United States v. Frady, 456 U.S. 152, 164 (1982). However, §

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2255 warrants relief if a prisoner alleges a constitutional or jurisdictional error, or a

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“fundamental defect which inherently results in a complete miscarriage of justice [or] an

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omission inconsistent with the rudimentary demands of fair procedure.” United States v.

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Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428

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(1962)).

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DISCUSSION

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Morelli contends he is entitled to habeas relief in light of the Supreme Court’s

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decision in Johnson. (Id.) His claims fail for the reasons set forth below.
A. Johnson is Inapplicable.

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In Johnson, the Supreme Court examined language from the ACCA, which

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provides for a mandatory sentence of fifteen years of imprisonment for a defendant who

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violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a

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“serious drug offense.” 18 U.S.C. § 924(e). There are three “clauses” in the statute

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defining what type of prior crime qualifies as a “violent felony”: (1) the “elements”

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clause: “has an element the use, or attempted use, or threatened use of physical force

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against the person of another”; (2) the “enumerated offenses” clause: “is burglary, arson,

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or extortion, [or] involves use of explosives”; and (3) the “residual” clause: “or otherwise

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3:16-cv-01470-GPC; Related Case No.: 3:15-cr-00029-GPC-2

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involves conduct that presents a serious potential risk of physical injury to another.” 18

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U.S.C. § 924(e)(2)(B).

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The Court held that the ACCA’s residual clause is void for vagueness, and that

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“imposing an increased sentence under the residual clause of the Armed Career Criminal

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Act violates the Constitution’s guarantee of due process.” Johnson, 135 S. Ct. at 2563.

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Put simply, a statute can be void for vagueness “‘if it fails to provide people of ordinary

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intelligence a reasonable opportunity to understand what conduct it prohibits’ or ‘if it

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authorizes or even encourages arbitrary and discriminatory enforcement.’” Id. at 2566

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(quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). Rather than “gauging the riskiness

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of conduct in which an individual defendant engages on a particular occasion,” the

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residual clause “requires application of the ‘serious potential risk’ standard to an

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idealized ordinary case of the crime.” Id. at 2561. No “principled and objective

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standard” could identify what crimes fell under its language. Id. at 2557. Thus, the

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residual clause violates due process, as it “both denies fair notice to defendants and

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invites arbitrary enforcement by judges.” Id.

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Johnson is inapplicable to Morelli’s case. First, Morelli was not sentenced under

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the ACCA. Morelli pleaded guilty to charges under 8 U.S.C. § 1324(a)(1)(A)(ii) and

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(v)(II). (Dkt. No. 40.) Second, he received an increased sentence pursuant to USSG §

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2L1.1(b)(6), not the ACCA’s residual clause. (Dkt. No. 68.) The retroactive holding in

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Johnson does not provide Morelli with a vehicle for relief.

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B. USSG § 2L1.1(b)(6) is Not Void for Vagueness.

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Morelli argues that USSG § 2L1.1(b)(6) is void for vagueness. In other words, he

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argues he is entitled to habeas relief because the residual clause analysis in Johnson

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applies equally to USSG § 2L1.1(b)(6)’s “specific offense characteristics” clause.8 (Dkt.

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No. 40.)

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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.”
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3:16-cv-01470-GPC; Related Case No.: 3:15-cr-00029-GPC-2

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First, the Supreme Court recently held in Beckles v. United States that the Federal

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Sentencing Guidelines “are not subject to vagueness challenges under the Due Process

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clause.” 137 S. Ct. 886, 890 (2017). Unlike the ACCA, “the advisory Guidelines do not

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fix the permissible range of sentences,” but “merely guide the exercise of a court’s

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discretion in choosing an appropriate sentence within the statutory range.” Id. at 892.

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Here, this Court exercised its discretion in increasing Morelli’s sentence under USSG §

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2L1.1(b)(6). (Dkt. No. 68.)

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Moreover, while USSG § 2L1.1(b)(6) uses the phrase “substantial risk,” the

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Supreme Court expressly noted that its holding in Johnson “does not put other criminal

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laws that use terms such as ‘substantial risk’ in doubt, because those laws generally

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require gauging the riskiness of an individual’s conduct on a particular occasion, not the

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riskiness of an idealized ordinary case of the crime.” 135 S. Ct. at 2554; see also id. at

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2561 (“As a general matter, we do not doubt the constitutionality of laws that call for the

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application of a qualitative standard such as ‘substantial risk’ to real-world conduct.”).

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Therefore, Morelli’s claim that USSG § 2L1.1(b)(6) is void for vagueness does not afford

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him habeas relief.

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C. Morelli’s Additional Claims Fail.
Morelli makes additional contentions in his reply brief. He claims he was (1) a

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passenger when the car was pulled over; and (2) never given notice by defense counsel of

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the sentence enhancement and would have otherwise gone to trial. (Dkt. No. 86.) Both

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of Morelli’s additional claims lack merit. First, Morelli admitted to knowingly

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transporting or moving, or attempting to transport or move aliens to help them remain in

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the United States, and accordingly pleaded guilty to 8 U.S.C. § 1324(a)(1 )(A)(ii). (Dkt.

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No. 40.) Upon executing the plea agreement, Morelli signed a waiver certifying he was

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given notice of the applicable sentencing guidelines and that sentencing is in the

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discretion of the Court. (Id.) He also signed the plea agreement, indicating that he was

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aware any sentence prediction made by defense counsel was merely a recommendation

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and not binding. (Id.) Therefore, Morelli’s belated contentions are meritless.
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3:16-cv-01470-GPC; Related Case No.: 3:15-cr-00029-GPC-2

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D. Evidentiary Hearing

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“Unless the motion and the files and records of the case conclusively show that the

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prisoner is entitled to no relief,” the Court must hold an evidentiary hearing on the merits

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of a § 2255 motion. 28 U.S.C. § 2255(b). However, a district court may deny a § 2255

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motion without an evidentiary hearing. United States v. Rodrigues-Vega, 797 F.3d 781,

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791 (9th Cir. 2015). An evidentiary hearing is unnecessary if the allegations, “when

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viewed against the record, do not state a claim for relief or are so palpably incredible or

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patently frivolous as to warrant summary dismissal.” United States v. Leonti, 326 F.3d

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1111, 1116 (9th Cir. 2003) (internal quotation marks omitted).

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Here, for the aforementioned reasons, Morelli’s allegations clearly do not state a

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claim for relief. Accordingly, the Court finds that Petitioner’s claims do not merit an

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evidentiary hearing.

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E. Certificate of Appealability

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Pursuant to 28 § U.S.C. 2253 (c) a petitioner may not appeal from a final order in a

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proceeding under § 2255, or be granted a Certificate of Appealability (“COA”) unless he

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has “made a substantial showing of the denial of a constitutional right.” “A petitioner

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satisfies this standard by demonstrating that jurists of reason could disagree with the

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district court’s resolution of his constitutional claims or that jurists could conclude that

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the issues presented here are adequate to deserve encouragement to proceed further.”

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Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). “When the district court denies a habeas

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petition on procedural grounds without reaching the prisoner’s underlying constitutional

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claim, a COA should issue when the prisoner shows, at least, that jurists of reason would

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find it debatable whether the petition states a valid claim of the denial of a constitutional

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claim and that jurists of reason would find it debatable whether the district court was

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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 §

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2255 petition lacks merit. Accordingly, the Court declines to issue a COA.

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3:16-cv-01470-GPC; Related Case No.: 3:15-cr-00029-GPC-2

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CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner’s Motion to Vacate, Set

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Aside or Correct Sentence under 28 U.S.C. § 2255. The Clerk of the Court shall close

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the case.

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IT IS SO ORDERED.
Dated: July 17, 2017

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3:16-cv-01470-GPC; Related Case No.: 3:15-cr-00029-GPC-2