Troiano v. USA

Filing 9

ORDER GRANTING, IN PART, AND DENYING, IN PART, PETITIONER'S REQUEST FOR A CERTIFICATE OF APPEALABLITY (ECF NO. 346) re 8 Notice of Appeal - Signed by JUDGE HELEN GILLMOR on 2/5/2018. (CR 05-00261 HG-01; CV 16-00512 HG-KSC) "Petitioner James Troiano's Request for a Certificate ofAppealability (ECF No. 346) is GRANTED, IN PART, and DENIED, INPART. As to the ORDER GRANTING, IN PART, AND DENYING, IN PART,PETITIO NERS MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE,OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (ECF No. 340): (1) Petitioner's Request for a Certificate of Appealability to challenge his Career Offender Designation is DENIED. (2) Petitioner's Request for a Certificate of Appealability to challenge the finding that his conviction for Hobbs Act robbery constitutes a crime of violence is DENIED. As to the ORDER CORRECTING THE SENTENCE OF DEFENDANT JAMES TROIANO AS TO COUNT 4 IN THE SUPERSEDING INDICTMENT (ECF No. 344): (1) Petitioner's Request for a Certificate of Appealability to challenge the procedure by which the District Court corrected his sentence is GRANTED. " (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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. The Ninth Circuit Court of Appeals served via CM/ECF on February 5, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JAMES TROIANO,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Cr. No. 05-00261 HG-01
Cv. No. 16-00512 HG-KSC

ORDER GRANTING, IN PART, AND DENYING, IN PART, PETITIONER’S
REQUEST FOR A CERTIFICATE OF APPEALABILITY (ECF No. 346)
On August 24, 2006, the Court sentenced Petitioner Troiano
to a term of imprisonment of 17 years as to Count 1 (conspiracy
to commit a Hobbs Act robbery), Count 2 (Hobbs Act robbery), and
Count 4 (felon in possession of a firearm), all terms to be
served concurrently with each other.

Defendant was also

sentenced to a 7 year term of imprisonment as to Count 3
(carrying a firearm in relation to a crime of violence), to be
served consecutively to the 17 year terms imposed for Counts 1,
2, and 4, for a total of 24 years imprisonment.

(Judgment, ECF

No. 218).
Nearly ten years later, on May 26, 2016, Petitioner filed a
Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct
Sentence By A Person In Federal Custody pursuant to the United
States Supreme Court’s decision in Johnson v. United States, 135
S.Ct. 2551 (2015).

(ECF No. 324).

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On August 25, 2017, the Court issued an ORDER GRANTING, IN
PART, AND DENYING, IN PART, PETITIONER’S MOTION UNDER 28 U.S.C. §
2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY.

(ECF No. 340).

The Court held that Petitioner’s sentence as to Count 4, for
Felon in Possession of a Firearm, was no longer subject to
sentencing enhancement pursuant to the Armed Career Criminal Act
following the United States Supreme Court’s decision in Johnson
v. United States.

The Court denied all other claims in

Petitioner’s Section 2255 Motion.
The Court declined to exercise its discretion to conduct a
full resentencing.

The Court corrected Petitioner’s 17 year

imprisonment sentence as to Count 4, with 5 years of supervised
release, to a term of imprisonment of 10 years, with a term of
supervised release of 3 years.
sentence remain unchanged.

All other aspects of Petitioner’s

The Court issued an Amended Judgment.

On December 14, 2017, Petitioner filed a Request for a
Certificate of Appealability.
Petitioner’s Request for a Certificate of Appealability (ECF
No. 346) is GRANTED, IN PART, AND DENIED, IN PART.

PROCEDURAL HISTORY
On October 5, 2005, the Government filed a four-count
Superseding Indictment as to Petitioner Troiano.

(ECF No. 59).

The Superseding Indictment charged Petitioner, as follows:
Count 1:

knowingly and willfully conspiring with others to
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obstruct and affect commerce and the movement of
articles and commodities in such commerce, by
robbery, in violation of 18 U.S.C. §§ 1951 and 2
(Conspiracy to commit a Hobbs Act robbery);
Count 2:

knowingly and willfully obstructing and affecting
commerce and the movement of articles and
commodities in such commerce, by robbery, in
violation of 18 U.S.C. §§ 1951 and 2 (Hobbs Act
robbery);

Count 3:

knowingly carrying and brandishing a firearm
during and in relation to a crime of violence, to
wit: conspiracy and Hobbs Act robbery as charged
in Counts 1 and 2 of this Superseding Indictment
in violation of 18 U.S.C. § 924(c); and,

Count 4:

having been convicted of a crime punishable for a
term exceeding one year, did knowingly possess in
and affecting commerce a firearm in violation of
18 U.S.C. §§ 922(g)(1); 924(e).

(ECF No. 59).
On April 19, 2006, after 7 days of trial, the jury found
Petitioner guilty on all 4 counts in the Superseding Indictment.
(ECF Nos. 181, 183).
On August 24, 2006, the Court sentenced Petitioner to a term
of imprisonment of 17 years as to each of Counts 1, 2, and 4 to
be served concurrently with each other, followed by a 7 year term
as to Count 3, to be served consecutively to the terms imposed
for Counts 1, 2, and 4, for a total of 24 years imprisonment.
(Judgment, ECF No. 218).
On December 12, 2007, the Ninth Circuit Court of Appeals
affirmed Petitioner’s conviction and sentence.

(ECF No. 273).

On April 14, 2008, the United States Supreme Court denied
Petitioner’s petition for certiorari.
552 U.S. 1330 (2008).
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Troiano v. United States,

On April 14, 2009, Petitioner filed a MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN
FEDERAL CUSTODY.

(ECF No. 283).

On August 19, 2009, the Court issued an ORDER DENYING JAMES
TROIANO’S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255.

(ECF No. 298).

Six years later, on June 26, 2015, the United States Supreme
Court issued its opinion in Johnson v. United States, 135 S.Ct.
2551 (2015).
On September 16, 2016, the Ninth Circuit Court of Appeals
granted Petitioner’s application to file a second or successive
Section 2255 Motion, stating that the application makes a prima
facie showing under Johnson.

The appellate court ordered that

Petitioner’s Second Section 2255 Motion be deemed filed in the
District Court on May 26, 2016.

(ECF No. 323).

On July 5, 2017, the District Court held a hearing on
Petitioner’s Section 2255 Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (ECF No. 324).

(ECF No.

339).
On August 25, 2017, the District Court issued its ORDER
GRANTING, IN PART, AND DENYING, IN PART, PETITIONER’S MOTION
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
BY A PERSON IN FEDERAL CUSTODY.

(ECF No. 340).

The Court found that Petitioner’s sentence as to Count 4,
for Felon in Possession of a Firearm, was no longer subject to
enhancement pursuant to the Armed Career Criminal Act following
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the United States Supreme Court’s decision in Johnson v. United
States, 135 S.Ct. 2551 (2015).

The Court denied Petitioner’s

Section 2255 Motion on all other aspects.
On December 7, 2017, the Court issued an ORDER CORRECTING
THE SENTENCE OF DEFENDANT JAMES TROIANO AS TO COUNT 4 IN THE
SUPERSEDING INDICTMENT.

(ECF No. 344).

The Order held that

pursuant to Johnson, Petitioner’s sentence as to Count 4 is
subject to a maximum sentence of ten years imprisonment with a
maximum term of supervised release of 3 years.

(Id.)

The Court

lowered Petitioner’s sentence as to Count 4 from 17 years
imprisonment with a 5 year term of supervised release to a
sentence of 10 years imprisonment with a 3 year term of
supervised release.

(Id.)

On the same date, the Court issued an AMENDED JUDGMENT.
(ECF No. 345).
On December 14, 2017, Petitioner filed PETITIONERDEFENDANT’S REQUEST FOR A CERTIFICATE OF APPEALABILITY.

(ECF No.

346).
On January 10, 2018, the Government filed THE GOVERNMENT’S
MEMORANDUM IN OPPOSITION TO THE DEFENDANT’S REQUEST FOR A
CERTIFICATE OF APPEALABILITY.

(ECF No. 348).

On January 25, 2018, Petitioner filed PETITIONER-DEFENDANT’S
SUPPLEMENTAL AUTHORITY IN SUPPORT OF REQUEST FOR A CERTIFICATE OF
APPEALABILITY.

(ECF No. 349).

On the same date, the Government filed THE GOVERNMENT’S
MEMORANDUM IN OPPOSITION TO THE DEFENDANT’S CITATION TO
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SUPPLEMENTAL AUTHORITY IN SUPPORT OF HIS REQUEST FOR A
CERTIFICATE OF APPEALABILITY.

(ECF No. 350).

The Court elected to decide the matter without a hearing
pursuant to District of Hawaii Local Rule 7.2(d).

(ECF No. 347).

STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
of 1996 provides that a Certificate of Appealability may be
issued in a habeas corpus proceeding “only if the applicant has
made a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2).

A “substantial” showing requires a prisoner to 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. McDaniel, 529 U.S. 473, 483–84 (2000).
ANALYSIS

The jury convicted Petitioner James Troiano as to all four
counts in the Superseding Indictment.
Ten years later, Petitioner filed a Section 2255 Motion
seeking post-conviction relief, relying on the United States
Supreme Court’s decision in Johnson v. United States, 135 S.Ct.
2551 (2015).

The decision in Johnson invalidated the residual

clause of the Armed Career Criminal Act as void for vagueness.
On August 25, 2017, the District Court issued an Order
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Granting, In Part, And Denying, In Part, Petitioner Troiano’s
Motion Under Section 2255 To Vacate, Set Aside, Or Correct
Sentence.

(ECF No. 340).

The Order granted Petitioner’s

challenge pursuant to Johnson as to the application of the Armed
Career Criminal Act to his Felon in Possession of a Firearm
charge in Count 4.

(Id. at pp. 5-8).

Petitioner Did Not Prevail In His Remaining Section 2255 Claims
The Order denied Petitioner’s challenge to the application
of the United States Sentencing Guidelines finding Petitioner is
a Career Offender.

(Id. at pp. 9-10).

The Order also denied

Petitioner’s argument that Hobbs Act robbery is not a crime of
violence.

(Id. at pp. 10-11).

Petitioner seeks a Certificate of Appealability of his two
arguments denied in this Court’s ORDER GRANTING, IN PART, AND
DENYING, IN PART, PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY (ECF No. 340):
(1)

his Career Offender Designation pursuant to the United
States Sentencing Guidelines; and,

(2)

the finding that his conviction for Hobbs Act robbery
constitutes a crime of violence.

Sentence Correction
On December 7, 2017, the District Court issued an Order
Correcting the Sentence of Defendant James Troiano As To Count 4
In The Superseding Indictment.

(ECF No. 344).
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The District

Court corrected Petitioner’s sentence as to Count 4 and lowered
it from a term of 17 years imprisonment, with a term of
supervised release of 5 years, to a term of 10 years
imprisonment, with a term of supervised release of 3 years.
(Id.)

The Court declined to conduct a full resentencing hearing.

(Id.)

The Court issued an Amended Judgment.

(ECF No. 345).

Petitioner also seeks a Certificate of Appealability as to
the denial of complete resentencing in this Court’s ORDER
CORRECTING THE SENTENCE OF DEFENDANT JAMES TROIANO AS TO COUNT 4
IN THE SUPERSEDING INDICTMENT (ECF No. 344):
(1)

I.

the procedure by which the District Court corrected his
sentence.

REQUEST FOR A CERTIFICATE OF APPEALABILITY AS TO THE ORDER
GRANTING, IN PART, AND DENYING, IN PART, PETITIONER’S MOTION
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY (ECF No. 340)

1.

Career Offender Designation

Petitioner requests a Certificate of Appealability to
challenge his Career Offender Designation pursuant to the United
States Sentencing Guidelines as void for vagueness.
The District Court rejected Petitioner’s challenge to his
Career Offender Designation pursuant to the United States Supreme
Court’s holding in Beckles v. United States, 137 S.Ct. 886
(2017).

Beckles held that the Sentencing Guidelines are

distinguished from the United States Code.

The United States

Supreme Court ruled that, unlike the United States Code, the
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Sentencing Guidelines “are not subject to a vagueness challenges
under the Due Process Clause.”

Id. at 890.

The Ninth Circuit Court of Appeals has repeatedly found that
vagueness challenges to a defendant’s Career Offender Designation
pursuant to the United States Sentencing Guidelines are
foreclosed by the holding in Beckles.

United States v. Jay, 705

Fed. Appx. 587, 588 (9th Cir. Nov. 30, 2017); United States v.
Branch, 703 Fed. Appx. 464 (9th Cir. Nov. 20, 2017).
Reasonable jurists could not debate the validity of
Petitioner’s challenge to his Career Offender Designation as void
for vagueness.

McPeters v. United States, 2017 WL 2115815, *4

(C.D. Cal. May 12, 2017) (denying petitioner’s request for a
Certificate of Appealability (“COA”) to a challenge his Career
Offender Designation); United States v. Zimmerman, 2017 WL
3026405, *2 (D. Nev. July 17, 2017) (denying a COA because claim
was foreclosed pursuant to Beckles).
Petitioner’s Request for a Certificate of Appealability to
challenge his Career Offender Designation is DENIED.

2.

Hobbs Act Robbery As A Crime Of Violence

Petitioner seeks a Certificate of Appealability to challenge
the District Court’s ruling that his conviction for a Hobbs Act
robbery constitutes a crime of violence.
It is well-settled law in the Ninth Circuit Court of Appeals
that a Hobbs Act robbery is a crime of violence pursuant to 18
U.S.C. § 924(c).

United States v. Mendez, 992 F.2d 1488, 1491
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(9th Cir. 1993); see United States v. Selfa, 918 F.2d 749, 751
(9th Cir. 1990).
In United States v. Howard, 650 Fed. Appx. 466, 468 (9th
Cir. 2016), the Ninth Circuit Court of Appeals stated that Hobbs
Act robbery “indisputably qualifies as a crime of violence under
Section 924(c).” Id. (quoting Mendez, 992 F.2d at 1491).
Less than three months ago, on November 30, 2017, in United
States v. Jay, 705 Fed. Appx. 587 (9th Cir. Nov. 30, 2017), the
Ninth Circuit Court of Appeals specifically rejected the exact
argument that Petitioner raises here and found that Hobbs Act
robbery is a crime of violence under its well-settled precedent.
Petitioner’s Request for a Certificate of Appealability to
challenge the finding that his conviction for Hobbs Act robbery
constitutes a crime of violence is DENIED.

II.

REQUEST FOR A CERTIFICATE OF APPEALABILITY AS TO THE ORDER
CORRECTING THE SENTENCE OF DEFENDANT JAMES TROIANO FOR COUNT
4 IN THE SUPERSEDING INDICTMENT (ECF No. 344)
On December 7, 2017, the District Court issued an ORDER

CORRECTING THE SENTENCE OF DEFENDANT JAMES TROIANO AS TO COUNT 4
IN THE SUPERSEDING INDICTMENT.

(ECF No. 344).

The District

Court declined to conduct a full resentencing and declined to
hold a hearing in order to correct Petitioner’s sentence as to
Count 4.
Reasonable jurists could debate whether Petitioner raised a
valid claim of the denial of a constitutional right and whether
the District Court was correct in its procedural ruling in
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declining to conduct a full resentencing hearing.

Frost v.

Gilbert, 835 F.3d 883, 888 (9th Cir. 2016) (en banc).
Petitioner’s Request for a Certificate of Appealability to
challenge the procedure by which the District Court corrected his
sentence is GRANTED.

CONCLUSION
Petitioner James Troiano’s Request for a Certificate of
Appealability (ECF No. 346) is GRANTED, IN PART, and DENIED, IN
PART.
As to the ORDER GRANTING, IN PART, AND DENYING, IN PART,
PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE,
OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (ECF No. 340):
(1)

Petitioner’s Request for a Certificate of Appealability
to challenge his Career Offender Designation is DENIED.

(2)

Petitioner’s Request for a Certificate of Appealability
to challenge the finding that his conviction for Hobbs
Act robbery constitutes a crime of violence is DENIED.

As to the ORDER CORRECTING THE SENTENCE OF DEFENDANT JAMES
TROIANO AS TO COUNT 4 IN THE SUPERSEDING INDICTMENT (ECF No.
344):
(1)

Petitioner’s Request for a Certificate of Appealability
to challenge the procedure by which the District Court
corrected his sentence is GRANTED.

//
//
//

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IT IS SO ORDERED.
Dated: Honolulu, Hawaii, February 5, 2018.

James Troiano v. United States of America; Cr. No. 05-00261 HG01; Cv. No. 16-00512 HG-KSC; ORDER GRANTING, IN PART, AND
DENYING, IN PART, PETITIONER’S REQUEST FOR A CERTIFICATE OF
APPEALABILITY (ECF No. 346)
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