Jones v. USA

Filing 5

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING A CERTIFICATE OF APPEALABILITY. Signed by JUDGE LESLIE E. KOBAYASHI on 01/29/2018. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
)
OPHERRO JONES (03),
)
)
Defendant.
)
_____________________________ )

CR. NO. 13-00860 LEK

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY AND DENYING A CERTIFICATE OF APPEALABILITY
Before the Court is Defendant/Petitioner Opherro
Jones’s (“Jones” or “Defendant”) Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (“§ 2255 Motion”), filed on June 9, 2016.
1011.]

[Dkt. no.

Jones filed a Memorandum in Support of the § 2255 Motion

on April 24, 2017.

[Dkt. no. 1105.]

Plaintiff/Respondent the

United States of America (“the Government”) filed its response to
the § 2255 Motion (“Response”) on May 9, 2017, and a Supplemental
Memorandum in Opposition (“Supplemental Response”) on May 12,
2017.

[Dkt. nos. 1115 (sealed), 1116.]

May 15, 2017.

[Dkt. no. 1117.]

Jones filed his reply on

Jones’s § 2255 Motion is hereby

denied, and a certificate of appealability is also denied, for
the reasons set forth below.

BACKGROUND
On September 12, 2013, Jones and seventeen others
(“Defendants”) were charged in a multi-count indictment.
no. 1.]

[Dkt.

Jones was charged with: racketeering conspiracy, in

violation of 18 U.S.C. § 1962(d) (“Count 1”); and violent crimes
in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3)
and 18 U.S.C. § 2 (“Count 4”).

The Indictment alleged that

Defendants “were members and associates of a criminal
organization in Hawaii known as the ‘USO Family,’” an enterprise
that the Indictment described as “the dominant prison gang in the
District of Hawaii and . . . a major prison gang nationally.”
[Indictment at ¶¶ 1, 3.]

Among the USO Family’s primary

activities were selling controlled substances and other
contraband within the prisons and the filing of fraudulent tax
returns.

[Id. at ¶¶ 5-6.]

Count 1 alleged that Jones and five

other Defendants “knowingly and intentionally conspired . . . to
conduct and participate, directly and indirectly, in the conduct
of the affairs of the enterprise through a pattern of
racketeering activity,” including: mail and wire fraud;
possession, with intent to distribute, methamphetamine and
marijuana; conspiracy to possess, with intent to distribute,
methamphetamine and marijuana; and bribery.

[Id. at pgs. 7-9.]

Count 4 alleged that Jones and four other Defendants “for the
purpose of gaining entrance to, and maintaining and increasing

2

position within the USO Family . . . unlawfully and knowingly
assaulted, and aided and abetted in assault, resulting in serious
bodily injury upon B.L.”

[Id. at pgs. 12-13.]

Jones initially entered a plea of not guilty, [Minutes,
filed 9/24/13 (dkt. no. 48), at 2] but, on March 28, 2014, he
withdrew his plea and pled guilty to Count 1, pursuant to a plea
agreement.

[Dkt. nos. 243 (Minutes), 246 (Memorandum of Plea

Agreement (“Plea Agreement”)).]

The Plea Agreement stated the

Government intended to argue at sentencing that Jones was a
career offender, but Jones was free to contest that point.
Agreement at ¶ 10.b(i).]

[Plea

Jones’s guilty plea was accepted and he

was adjudged guilty on April 15, 2014.

[Dkt. no. 261.]

Jones’s sentencing hearing was held on May 27, 2015.
The Plea Agreement was accepted and the factual findings in the
presentence report were adopted.

[Minutes, filed 5/27/15 (dkt.

no. 913) (“Sentencing Minutes”); Presentence Investigation Report
(“PSR”), filed 6/3/15 (dkt. no. 916).]

The PSR found that

Jones’s base offense level was fourteen, with: a two-level
increase because methamphetamine and marijuana were smuggled into
a prison facility for distribution to other inmates; a two-level
increase because Jones, and others associated with the USO
Family, bribed prison guards to facilitate the commission of the
offense; and a four-level increase because Jones was considered
one of the organizers or leaders of the offense.

3

His adjusted

offense level was therefore twenty two.

[Id. at ¶¶ 81-87.]

However, Jones was determined to be a career offender, making his
offense level thirty two.

[Id. at ¶ 98 (citing United States

Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) § 4B1.1).]
After a total decrease of three levels for acceptance of
responsibility, Jones’s total offense level was twenty-nine.
[Id. at ¶¶ 99-101.]

His criminal history category was VI because

he was a career offender, but his criminal category would have
been VI based on criminal history points.

[Id. at ¶¶ 113-15.]

Jones’s imprisonment range under the Guidelines was therefore 151
to 188 months, and his range for supervised release was 1 to 3
years.

[Id. at ¶¶ 139, 142.]

The Government’s motion for a

downward departure was granted, reducing Jones’s offense level to
twenty-seven, resulting in a Guidelines sentencing range of 130
to 162 months.

[Sealed Motion for a Downward Departure and

Sentencing Recommendation Pursuant to USSG § 5K1.1 and 18 U.S.C.
§ 3553(a), filed 1/28/15 (dkt. no. 839), at 5; Trans. of 5/27/15
Sentencing Hrg. (“Sentencing Trans.”), filed 5/10/17 (dkt. no.
1114), at 45.]

This Court further varied downward in its

discretion to avoid sentencing disparity.

[Sentencing Trans. at

45.]
Jones was sentenced to 110 months of imprisonment and 3
years of supervised release, and he was ordered to pay $4,576.00
in restitution, and a $100 special assessment.

4

The Government’s

oral motion to dismiss Count 4 was also granted.
Minutes at 2, 4.]

[Sentencing

The Judgment in a Criminal Case (“Judgment”)

was filed on May 29, 2015.

[Dkt. no. 914.]

Jones did not file

an appeal.
In the § 2255 Motion, filed on June 9, 2016, Jones
contended that the career offender enhancements to his sentence
violated his due process rights, in light of Johnson v. United
States, 135 S. Ct. 2551 (2015) (“Johnson”), and Welch v. United
States, 136 S. Ct. 1257 (2016).

Jones asserted that the residual

clause of U.S.S.G. § 4B1.2 was applied at his sentencing and “the
residual clause is void ab initio” under Johnson and Welch.1
[§ 2255 Motion at 5.]

In his subsequent Memorandum in Support,

Jones changed his argument.2

1

Jones recognizes that Beckles v.

At the time of Jones’s sentencing, § 4B1.2(a) stated:
The term “crime of violence” means any offense
under federal or state law, punishable by
imprisonment for a term exceeding one year, that–
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.

U.S.S.G. § 4B1.2(a) (11/1/15).
2

Consideration of the merits of Jones’s § 2255 Motion was
stayed pending the United States Supreme Court’s decision in
(continued...)
5

United States, 137 S. Ct. 886 (2017), “holds that the void-forvagueness doctrine animating Johnson . . . does not apply to the
Guidelines.”

[Mem. in Supp. of § 2255 Motion at 4.]

Thus, Jones

now argues “his sentence violates due process because the career
offender guideline’s residual clause is so inscrutable it
produces an arbitrary and unreliable starting point and,
ultimately in his case, a substantively unreasonable sentence.”
[Mem. in Supp. of § 2255 Motion at 22-23.]
The Government responds that: because the Memorandum in
Support raises new claims, it is an amended motion, and it is
untimely; even if the amended motion is timely, the new claims
are procedurally barred; the Plea Agreement waived Jones’s right
to bring collateral challenges to his sentence; and, if this
Court reaches the merits of Jones’s new claims, his Guidelines
sentencing range was correctly determined.
STANDARD
Section 2255(a) states:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was

2

(...continued)
Beckles v. United States, No. 15-8544 (June 27, 2016). The
Supreme Court’s decision in Beckles automatically lifted the
stay. [Order Re: Holding Merits Review on Guideline and Section
924(c) United States v. Johnson Claims in Abeyance Pending
Decision in Beckles v. United States, filed 7/8/16 (dkt. no.
1041), at 1.]
6

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, may move the court which
imposed the sentence to vacate, set aside or
correct the sentence.
This district court has described the standards applicable to
§ 2255 motions as follows:
A court may dismiss a § 2255 motion if “it
plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that
the moving party is not entitled to relief.”
R. 4(b), Rules Governing Section 2255 Proceedings.
A court need not hold an evidentiary hearing if
the allegations are “palpably incredible [or]
patently frivolous,” Blackledge v. Allison, 431
U.S. 63, 76 (1977) (internal quotation marks and
citation omitted), or if the issues can be
conclusively decided on the basis of the evidence
in the record. See United States v. Mejia-Mesa,
153 F.3d 925, 929 (9th Cir. 1998) (noting that a
“district court has discretion to deny an
evidentiary hearing on a § 2255 claim where the
files and records conclusively show that the
movant is not entitled to relief”). Conclusory
statements in a § 2255 motion are insufficient to
require a hearing. United States v. Johnson, 988
F.2d 941, 945 (9th Cir. 1993). A petitioner must
“allege specific facts which, if true, would
entitle him to relief.” United States v.
Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003)
(internal quotation marks and citation omitted).
United States v. Sherman, Cr. No. 16-00169 JMS, 2017 WL 4560150,
at *1 (D. Hawai`i Oct. 12, 2017) (alteration in Sherman).
The issues raised in Jones’s § 2255 Motion are legal
issues that “can be conclusively decided on the basis of the
evidence in the record,” including the record of the underlying

7

proceedings.

See Mejia-Mesa, 153 F.3d at 929.

An evidentiary

hearing is therefore unnecessary in this case.
DISCUSSION
I.

Timeliness of the § 2255 Motion
The one year period for a defendant to file a § 2255

Motion runs from the latest of:
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation
of the Constitution or laws of the United States
is removed, if the movant was prevented from
making a motion by such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme
Court and made retroactively applicable to cases
on collateral review; or
(4) the date on which the facts supporting the
claim or claims presented could have been
discovered through the exercise of due diligence.
§ 2255(f).

The original § 2255 Motion asserted that it was

timely under § 2255(f)(3) because it was based on Johnson, which
applies retroactively to cases on collateral review, pursuant to
Welch.

[§ 2255 Motion at 13.]

However, in the Memorandum in

Support, Jones argues that the § 2255 Motion is timely under
§ 2255(f)(1), without consideration of Johnson and Welch.

[Mem.

in Supp. of § 2255 Motion at 5.]
The Judgment in this case was entered on May 29, 2015.
Because Jones did not file a direct appeal, his conviction became
8

final when the time to file a direct appeal expired, see United
States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015), fourteen
days later on June 12, 2015, see Fed. R. App. P. 4(b)(1)(A)(i).
Because Jones filed his § 2255 Motion within one year of that
date, his motion is timely.
The Government argues that the April 27, 2017
Memorandum in Support effectively amended the June 9, 2016 § 2255
Motion, and the amended motion is not timely under § 2255(f)(1).
Although the § 2255 Motion asserts that the residual clause of
U.S.S.G. § 4B1.2 is void ab initio under Johnson and the
Memorandum in Support now advances a different theory, both the
§ 2255 Motion and the Memorandum in Support contend that Jones’s
sentence violates his due process rights because he was
improperly sentenced as a career offender.

Jones merely changed

the legal argument in support of his “claim” that his sentence
violates his due process rights.

The Government’s arguments that

the Memorandum in Support raises a new “claim” in an untimely
amended § 2255 motion, and its argument that the Memorandum in
Support improperly amended Jones’s § 2255 Motion without leave of
court, are therefore rejected.
II.

Procedural Bar
The Government argues that the arguments Jones raises

in the Memorandum in Support are procedurally barred because he
did not raise them in a direct appeal.

9

“Where a defendant has

procedurally defaulted a claim by failing to raise it on direct
review, the claim may be raised in habeas only if the defendant
can first demonstrate either cause and actual prejudice, or that
he is actually innocent.”

Bousley v. United States, 523 U.S.

614, 622 (1998) (citations and internal quotation marks omitted).
Generally, to demonstrate “cause” for procedural
default, an appellant must show that “some
objective factor external to the defense” impeded
his adherence to the procedural rule. Murray v.
Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L.
Ed. 2d 397 (1986).[3] However, if the record
shows that an appellate counsel’s performance fell
below the standard of competency of counsel set
forth in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), or that
he was denied representation by counsel on appeal
altogether, he has demonstrated cause for his
procedural default. See Murray, 477 U.S. at 488,
106 S. Ct. 2639 (“Ineffective assistance of
counsel, then, is cause for a procedural
default.”); Correll v. Stewart, 137 F.3d 1404,
1416 (9th Cir. 1998) (citing Murray, 477 U.S. at
488, 106 S. Ct. 2639, for the proposition that
“ineffective assistance of counsel may constitute
cause”); Allen v. Risley, 817 F.2d 68, 69 (9th
Cir. 1987) (“‘Attorney error short of ineffective
assistance of counsel does not constitute cause
for a procedural default.’”) (quoting Murray, 477
U.S. at 492, 106 S. Ct. 2639). . . .
United States v. Skurdal, 341 F.3d 921, 925-26 (9th Cir. 2003).
A.

Ineffective Assistance as Cause
Because Jones did not file an appeal, there is no

evidence that appellate counsel rendered ineffective assistance.

3

Murray was superseded on other grounds by the
Antiterrorism and Effective Death Penalty Act. See, e.g., United
States v. Gonzalez-Largo, No. 2:07–cr–0014 JCM (RJJ), 2012 WL
3245522, at *2 (D. Nev. Aug. 7, 2012).
10

Further, there is no evidence in the record – nor does Jones
allege – he was denied the representation of counsel to file an
appeal.

As to the proceedings prior to Judgment, although the

Plea Agreement reserved Jones’s right to object to a career
offender designation at sentencing, Jones did not object to the
PSR’s finding that he was a career offender.

[Sentencing

Statement, filed 5/8/15 (dkt. no. 908) (stating that Jones “has
no objections to the presentence investigation report prepared on
October 23, 2014”).]

Jones argued that a reduction or variance

from the Guidelines sentencing range was appropriate because,
inter alia, his “classification as a career offender overstates
his criminal history.”
911), at 3.]

[Sentencing Mem., filed 5/20/15 (dkt. no.

At the sentencing hearing, Jones’s counsel did not

contest the career offender determination.

See, e.g., Sentencing

Trans. at 16 (“He’s a career offender and never had much of a
career other than offending.”); id. at 29 (“what separates him a
little bit apart from all this, again, is this career offender
label that has tripped him up”).

Whether a challenge to the

career offender determination could have been raised in a direct
appeal and, if so, whether the failure to file an appeal
constituted ineffective assistance, are not before the Court at
this time because Jones does not assert ineffective assistance of
counsel as the “cause” excusing his procedural default.

11

B.

Novel Claims as Cause
Cause can also exist “where a constitutional claim is

so novel that its legal basis [wa]s not reasonably available to
counsel” prior to habeas proceedings.
16 (1984).

Reed v. Ross, 468 U.S. 1,

A claim is “novel” under the following circumstances:
First, a decision of this Court may explicitly
overrule one of our precedents. United States v.
Johnson, 457 U.S.[ 537,] 551, 102 S. Ct.[ 2579,]
2588 [(1982).4] Second, a decision may
“overtur[n] a longstanding and widespread practice
to which this Court has not spoken, but which a
near-unanimous body of lower court authority has
expressly approved.” Ibid. And, finally, a
decision may “disapprov[e] a practice this Court
arguably has sanctioned in prior cases.” Ibid.
By definition, when a case falling into one of the
first two categories is given retroactive
application, there will almost certainly have been
no reasonable basis upon which an attorney
previously could have urged a state court to adopt
the position that this Court has ultimately
adopted.

Id. at 17 (some alterations in Reed).
In response to the Government’s procedural bar
argument, Jones asserts there was cause excusing his failure to
challenge his career offender determination in a direct appeal
because Johnson was not decided until after the time to file his
direct appeal expired.

[Reply at 5.]

Johnson established a new

substantive rule that applies retroactively.

4

United
other grounds
United States
2016) (citing

Welch, 136 S. Ct.

States v. Johnson, 457 U.S. 537 was abrogated on
by Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
v. Cornejo, 196 F. Supp. 3d 1137, 1148 (E.D. Cal.
Roman v. Abrams, 822 F.2d 214, 227 (2d Cir. 1987)).
12

at 1268.

Courts have recognized that there is cause excusing a

habeas petitioner’s failure to raise a Johnson claim on direct
review before Johnson was decided because it is a novel claim.
See, e.g., Wade v. United States, 242 F. Supp. 3d 974, 978 (C.D.
Cal. 2017).

However, the holding in Johnson was that “an

increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due
process” because the residual clause is void for vagueness.

135

S. Ct. at 2563; see also Welch, 136 S. Ct. at 1260-61 (describing
the holding in Johnson).

That new substantive rule does not

support Jones’s § 2255 Motion because he challenges the
determination at sentencing that he is a career offender under
the residual clause of U.S.S.G. § 4B1.2(a).

See Beckles, 137 S.

Ct. at 895 (“we hold that the advisory Sentencing Guidelines are
not subject to a vagueness challenge under the Due Process Clause
and that § 4B1.2(a)’s residual clause is not void for
vagueness”).
In spite of the holding in Beckles, Jones contends that
the Johnson analysis still applies to “the career offender’s
identically worded residual clause, even though the void-forvagueness doctrine has no play.”
at 22.]

[Mem. in Supp. of § 2255 Motion

Jones relies extensively on quotations from Johnson,

see, e.g., id. at 19-20, and he therefore contends he is
asserting the type of novel claim that constitutes cause excusing

13

his failure to raise the challenge on direct appeal.
mistaken.

He is

The crux of the § 2255 Motion is that the enhancement

of Jones’s sentence based on his career offender determination
violated his due process rights because the residual clause of
§ 4B1.2(a) resulted in arbitrary findings, based on unreliable
information, that his prior convictions were “crimes of
violence.”

See, e.g., id. at 21; Reply at 2.

Although Jones

uses quotations from Johnson to support this claim, Johnson did
not create his claim.

Thus, Jones could have raised his claim in

a direct appeal, and his claim is not the type of novel claim
that constitutes cause for purposes the procedural default
analysis.
Because both cause and prejudice are required, Bousley,
523 U.S. at 622, and Jones has failed to establish cause, it is
not necessary to address prejudice.

Jones’s challenge to his

career offender determination is precluded by the procedural
default doctrine.

In light of this ruling, this Court cannot

address the merits of Jones’s § 2255 Motion, and the motion must
be denied.
III. Certificate of Appealability
This district court has stated that:
In dismissing a § 2255 motion, the court must
also address whether [defendant/petitioner] should
be granted a certificate of appealability (“COA”).
See R. 11(a), Rules Governing Section 2255
Proceedings (providing that “[t]he district court
must issue or deny a certificate of appealability
14

when it enters a final order adverse to the
applicant”). A COA may issue only if the
petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
“The standard for a certificate of
appealability is lenient.” Hayward v. Marshall,
603 F.3d 546, 553 (9th Cir. 2010) (en banc),
overruled on other grounds by Swarthout v. Cooke,
562 U.S. 216 (2011). The petitioner is required
to demonstrate only “that reasonable jurists could
debate the district court’s resolution or that the
issues are adequate to deserve encouragement to
proceed further.” Id. (citation and internal
quotation marks omitted). The standard “requires
something more than the absence of frivolity, but
something less than a merits determination.” Id.
(internal quotation marks omitted).
The court carefully reviewed [the
defendant/petitioner’s] assertions and gave him
every benefit by liberally construing them. Based
on the above analysis the court finds that
reasonable jurists could not find the court’s
rulings debatable.
Leon v. United States, Civ. No. 15-00099 JMS-BMK, 2015 WL
3965895, at *9-10 (some alterations in Leon).

Reasonable jurists

would not find that the rulings in this Order regarding Jones’s
§ 2255 Motion are debatable.

A certificate of appealability

therefore will not be issued.
CONCLUSION
On the basis of the foregoing, Jones’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a

15

Person in Federal Custody, filed June 9, 2016, is HEREBY DENIED.
In addition, this Court DENIES a certificate of appealability.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 29, 2018.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

UNITED STATES OF AMERICA VS. OPHERRO JONES; CR 13-00860(03) LEK;
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE,
OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING A
CERTIFICATE OF APPEALABILITY

16