Huynh v. USA

Filing 2

ORDER Denying Defendant's Motion to Vacate Under 28 U.S.C. § 2255 as to Hung Van Huynh. Signed by Judge Michael M. Anello on 4/17/2017.(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 09cr1442-MMA-1 Related Case No.: 16cv1769-MMA UNITED STATES OF AMERICA, Plaintiff, 12 13 v. 14 HUNG VAN HUYNH (1), ORDER DENYING DEFENDANT’S MOTION TO VACATE UNDER 28 U.S.C. § 2255 Defendant. 15 16 [Doc. No. 82] 17 18 On December 1, 2011, pursuant to a written plea agreement, Defendant Hung Van 19 Hyunh pleaded guilty to count four of a Superseding Indictment for distributing 220.8 20 grams of cocaine, a Schedule II controlled substance, in violation of Title 21, United 21 States Code, section 841(a)(1), and Title 18, section 2. See Doc. No. 53. The Court 22 sentenced Defendant on June 4, 2012 to a term of 180 months imprisonment. See Doc. 23 No. 64. Defendant filed a successive motion1 pursuant to 28 U.S.C. § 2255, challenging 24 his classification as a career offender under the United States Sentencing Guidelines in 25 26                                                 27 1 28 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. 1 09cr1442-MMA-1 1 light of Johnson v. United States, 576 U.S. ---, 135 S. Ct. 2551 (2015). See Doc. No. 82. 2 The government filed a response in opposition to Defendant’s motion. See Doc. No. 87. 3 In Johnson, the Supreme Court held the residual clause in the definition of a 4 “violent felony” in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) 5 (“ACCA”), to be unconstitutionally vague and a violation of the Due Process Clause. 6 135 S. Ct. at 2557. Defendant was not sentenced under the ACCA’s residual clause; he 7 was sentenced based on the career offender enhancement provision of the Sentencing 8 Guidelines. Nonetheless, Defendant argues that Johnson’s holding is applicable, because 9 the ACCA’s residual clause is identical in language to Section 4B1.2’s residual clause. 10 However, on March 6, 2017, the Supreme Court ruled that Johnson’s holding does not 11 extend to the Sentencing Guidelines, in so far as “the advisory Guidelines are not subject 12 to vagueness challenges under the Due Process Clause.”2 Beckles v. United States, 137 S. 13 Ct. 886, 197 L. Ed. 2d 145 (2017). Under Beckles, “it plainly appears from the face of 14 the motion” that Defendant “is not entitled to relief.” See Rule 4(b) of the Rules 15 Governing Section 2255 Proceedings for the United States District Courts. As such, 16 Defendant’s 2255 motion must be denied. 17 CERTIFICATE OF APPEALABILITY 18 Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States 19 District Courts provides that “[t]he district court must issue or deny a certificate of 20 appealability when it enters a final order adverse to the applicant.” A defendant must 21 obtain a certificate of appealability before pursuing any appeal from a final order in a 22 Section 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a Section 23 2255 motion is based on the merits of the claims in the motion, a district court should 24 issue a certificate of appealability only when the appeal presents a “substantial showing 25                                                 26 2 27 28 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. 2 09cr1442-MMA-1 1 of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The defendant must 2 show that reasonable jurists could debate whether the issues should have been resolved 3 differently or are “adequate to deserve encouragement to proceed further.” Slack v. 4 McDaniel, 529 U.S. 473, 483 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 5 (1983), superseded on other grounds by 28 U.S.C. § 2253(c)(2); see also Mendez v. 6 Knowles, 556 F.3d 757, 771 (9th Cir. 2009). Because Defendant has not made a 7 substantial showing of the denial of a constitutional right, and because the Court finds 8 that reasonable jurists would not debate the denial of Defendant’s motion, the Court 9 declines to issue a certificate of appealability. 10 11 CONCLUSION Based on the foregoing, the Court DENIES Defendant’s 2255 motion. The Court 12 DECLINES to issue a certificate of appealability. The Clerk of Court is instructed to 13 enter judgment in accordance herewith and close the related civil case. 14 15 16 IT IS SO ORDERED. DATE: April 17, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 3 09cr1442-MMA-1

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