Lopez v. USA
Filing
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ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE re 1 - Signed by JUDGE ALAN C KAY on 9/12/2016. (CR 97-01117 ACK-02; CV 16-00352 ACK-KJM) "For the foregoing reasons, the Court DENIES Petitioner's Section 2255 Motion and DENIES a certificate of appealability." (emt, )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). Hector Lopez shall be served by first class mail at the address of record on September 13, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Hector Lopez
Petitioner,
vs.
United States of America,
Respondent.
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) Civ. No. 16-00352 ACK-KJM
) Cr. No. 97-01117 ACK (02)
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ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Petitioner Hector Lopez filed a Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (“Motion”).
For the reasons set forth below,
the Court hereby DENIES Petitioner’s Motion, Doc. No. 322.
PROCEDURAL BACKGROUND
On October 8, 1997, Petitioner was charged by a
federal grand jury with conspiracy to distribute more than 1
kilogram of heroin, relieving and assisting co-defendant
Francisco Davalos in the use and possession of a firearm during
and in relation to a drug trafficking crime which resulted in
the murder of Arturo Renteria-Hernandez, and carrying and using
a firearm during and in relation to a drug trafficking crime and
causing the first degree murder of Renteria-Hernandez.
Doc. No.
1.
On July 29, 1998, the indictment was superseded to charge
Petitioner with: Count 1: Conspiracy to Distribute 1 Kilogram or
More of Heroin; Count 2: Conspiracy to Distribute More Than 100
Grams of Heroin; Count 4: Rendering Aid and Comfort to Francisco
Davalos Knowing that Davalos Had Committed the Murder of Arturo
Renteria-Hernandez; and Count 5: Carrying and Using a Firearm
During and in Relation to the Count 2 Drug Trafficking
Conspiracy, and in the Course of that Violation Committing the
First Degree Murder of Armando Renteria-Hernandez.
Doc. No.
207.
On September 25, 1998, following a 9-day jury trial,
Petitioner was convicted of Counts 1, 2, 4, and 5.
247.
Doc. No.
On April 19, 1999, Petitioner was sentenced to a term of
imprisonment of 151 months for Counts 1, 2, and 4, to be served
concurrently, and life imprisonment for Count 5, to run
consecutive to the 151 month sentence for the other counts.
Doc. No. 271.
Petitioner filed a Motion for Reduction of Sentence on
July 2, 2015.
Doc. Nos. 314-315.
The Court denied the Motion
on October 23, 2015, finding Petitioner ineligible for a
sentence reduction pursuant to Amendment 782 of the Sentencing
Guidelines.
Doc. No. 321.
On June 22, 2016, Petitioner, proceeding pro se,
mailed to this Court the instant Motion.
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On July 8, 2016, the
Court issued a Minute Order appointing the Federal Public
Defender as counsel to represent Petitioner.
Doc. No. 323.
On
July 13, 2016, the Court received a letter from the Federal
Public Defender’s Office, stating the office would not be filing
any other pleadings on Petitioner’s behalf.
Accordingly, on
July 13, 2016, the Court issued a Minute Order removing the
Federal Public Defender as counsel for Petitioner and allowing
Petitioner to proceed with his case pro se.
Doc. No. 324.
The
Court directed the United States to file a response to
Petitioner’s Motion by August 4, 2016 and allowed Petitioner to
file an optional reply by August 18, 2016.
On August 3, 2016, the United States filed its
Response in Opposition to Defendant’s Motion.
Doc. No. 327.
Petitioner did not file a reply.
STANDARD
Pursuant to 28 U.S.C. § 2255, a prisoner may move the
court to vacate, set aside, or correct a sentence “upon 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).
A court shall hold an evidentiary hearing on a motion
under Section 2255 “[u]nless the motion and the files and
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records of the case conclusively show that the prisoner is
entitled to no relief.”
28 U.S.C. § 2255(b).
As discussed
below, the Court finds that Petitioner’s arguments lack merit.
Because the record conclusively shows that Petitioner is not
entitled to relief, a hearing is not warranted in this case.
DISCUSSION
I.
Defendant Does Not Qualify for Relief Under Johnson v.
United States
Petitioner argues that he qualifies for relief
pursuant to the Supreme Court’s decision in Johnson v. United
States, 135 S.Ct. 2551 (2016).
In Johnson, the Court held that
imposing a sentence pursuant to the “residual clause” of the
Armed Career Criminal Act (“ACCA”) of 1984 is unconstitutional.
Id. at 2557-58.
Pursuant to the ACCA, defendants in illegal
firearms cases who have previously been convicted three or more
times for “violent” felonies, face tougher sentences.
2555.
Id. at
The definition of a “violent” felony includes any felony
that “involves conduct that presents a serious potential risk of
physical injury to another.”
924(e)(2)(B)).
Id. (quoting 18 U.S.C. §
This portion of the definition of a “violent”
felony is known as the Act’s “residual clause.”
S.Ct. at 2556.
Johnson, 135
In Johnson, the Supreme Court determined that
the residual clause was unconstitutionally vague.
58.
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Id. at 2557-
Here, Petitioner’s sentence was not enhanced pursuant
to the ACCA.
Petitioner was sentenced to life imprisonment
under Count 5 based on his conviction pursuant to 18 U.S.C. §
924(j) for the charge of using a firearm during the commission
of a drug offense resulting in death.
As noted in the
Presentence Report, the applicable section of the Sentencing
Guidelines was Section 2A1.1.
Doc. No. 283.
While a conviction
under 18 U.S.C. § 924(j) included a mandatory minimum 5-year
sentence, under Section 2A1.1, because the conviction involved
use of a firearm during a drug trafficking offense that resulted
in the commission of murder in the first degree, the base
offense level was 43.
As stated in the Presentence Report,
offense level 43, even with Petitioner’s criminal history
category of I, resulted in a life sentence under the guidelines.
This was the sentence imposed by the Court on Count 5.
Petitioner was also sentenced to a consecutive 151-month term of
imprisonment on Counts 1, 2, and 4 based on his drug
convictions.
Petitioner’s life sentence and consecutive 151-month
term of imprisonment were not based on the ACCA nor was his
sentence based on any definition of a crime of violence.
Moreover, Petitioner has not asserted any argument demonstrating
that the elements of the statutes for which he was convicted are
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unconstitutionally vague.
Accordingly, Petitioner is not
entitled to relief under Johnson.
II.
Certificate of Appealability
Because the Court denies Petitioner’s Section 2255
motion, the Court must address whether a certificate of
appealability should issue.
Section 2255 Proceedings.
See R. 11(a), Rules Governing
A certificate of appealability may
only issue “if the applicant has made a substantial showing of
the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
The applicant, under this standard, must show that “reasonable
jurists could debate whether . . . the petition should have been
resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.”
Slack v.
MacDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted) (citation omitted).
Based on the above analysis, the
Court finds that reasonable jurists could not find the Court’s
ruling debatable.
Thus, the Court denies the issuance of a
certificate of appealability.
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CONCLUSION
For the foregoing reasons, the Court DENIES
Petitioner’s Section 2255 Motion and DENIES a certificate of
appealability.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, September 12, 2016.
________________________________
Alan C. Kay
Sr. United States District Judge
Lopez v. United States of America, Civ. No. 16-00352 ACK-KJM,
Cr. No. 97-01117 ACK (02) Order Denying Motion Under 28 U.S.C.
§2255 to Vacate, Set Aside, or Correct Sentence
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