Burkholder v. USA

Filing 1

ORDER. IT IS HEREBY ORDERED that Petitioner's 2255 Motion is DENIED. Signed by Chief Judge Gloria M. Navarro on 4/8/2019. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,
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Respondent/Plaintiff,

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vs.

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JOHNNIE RAY BURKHOLDER,
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Petitioner/Defendant.

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Case No.: 2:12-cr-00240-GMN-GWF
ORDER

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Pending before the Court is Petitioner Johnnie Ray Burkholder’s (“Petitioner’s”) Motion

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to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“2255 Motion”), (ECF

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No. 52), to which Respondent United States of America (the “Government”) filed a Response,

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(ECF No. 62). For the reasons discussed below, Petitioner’s 2255 Motion is DENIED.

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I.

BACKGROUND

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On December 3, 2012, Petitioner pleaded guilty to one count of federal bank robbery in

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violation of 18 US.C. § 2113(a). (Plea Agreement, ECF No. 24); (Mins. Proceedings, ECF No.

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23). The Court accordingly sentencing Petitioner to a term of 151 months imprisonment. (J.,

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ECF No. 32).

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On September 29, 2014, Petitioner filed his first Motion to Vacate Sentence pursuant to

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28 U.S.C. § 2255, which asserted four grounds for relief: (1) Petitioner’s counsel failed to file

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an appeal; (2) the presentence report from the United States Probation Office had inaccurate

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information; (3) the Court did not apply a downward departure due to diminished health or

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mental capacity; and (4) unlawful application of the United States Sentencing Guidelines. (Mot.

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Vacate at 5–7, ECF No. 42). The Court denied Petitioner’s Motion to Vacate Sentence on

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December 29, 2014. (Order, ECF No. 48).

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On June 6, 2016, Petitioner filed the instant 2255 Motion with the Court; and Petitioner

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received approval from the Ninth Circuit Court of Appeals to proceed with the 2255 Motion as

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a “second or successive 28 U.S.C. § 2255 motion” on February 16, 2017. (USCA Order, ECF

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No. 59).

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II.

LEGAL STANDARD
Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the Court which

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imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255(a).

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Such a motion may be brought on the following grounds: “(1) the sentence was imposed in

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violation of the Constitution or laws of the United States; (2) the court was without jurisdiction

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to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or

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(4) the sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624

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F.3d 1031, 1038 (9th Cir. 2010). Motions pursuant to § 2255 must be filed within one year

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from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1).
A second motion pursuant to 28 U.S.C. § 2255 can only proceed with approval from the

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court of appeals for the circuit of the district court that imposed the sentence. See 28 U.S.C.

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§ 2255(h). “[O]nce the bar to considering a second or successive petition or motion has been

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overcome, the analysis of the merits is the same as if the petitioner were bringing a first petition

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or motion.” United States v. Geozos, 870 F.3d 890, 895 (9th Cir. 2017).

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III.

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DISCUSSION
In the 2255 Motion, Petitioner argues that the sentence of 151 months violates due

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process because the Court imposed it under an unconstitutionally vague portion of the United

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States Sentencing Guidelines (U.S.S.G.)—specifically, U.S.S.G. § 4B1.2, known as the residual

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clause. (2255 Motion 2:2–7, ECF No. 52). Petitioner’s vagueness argument relies on Johnson

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v. United States, 135 S. Ct. 2551 (2015). In Johnson, the US Supreme Court ruled that the

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residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally vague.

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Johnson, 135 S. Ct. at 2557. Petitioner accordingly points to the language in U.S.S.G

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§ 4B1.2’s residual clause, which is identical to the ACCA’s residual clause, for the proposition

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that the statutory provisions, and any sentences imposed under them, are invalid. (Id. 4:18–23).

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However, the US Supreme Court’s later decision in Beckles v. United States, 137 S. Ct.

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886 (2017), forecloses Petitioner’s argument. In Beckles, the US Supreme Court ruled that the

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United States Sentencing Guidelines are not subject to void-for-vagueness challenges. Beckles,

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137 S. Ct. 886, 894 (2017) (“Unlike the ACCA, however, the advisory guidelines do not fix the

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permissible range of sentences. . . . Accordingly, the Guidelines are not subject to vagueness

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challenge under the Due Process Clause”). Thus, Petitioner has no basis for relief under

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Johnson.

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Additionally, the Court will not issue a certificate of appealability, which is required for

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Petitioner to proceed with an appeal of this Order. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22;

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9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950–51 (9th Cir. 2006). Generally, a

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petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a

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certificate of appealability. 28 U.S.C. § 2253(c)(2). “The petitioner must demonstrate that

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reasonable jurists would find the district court’s assessment of the constitutional claims

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debatable or wrong.” Ornoski, 435 F.3d at 951 (quoting Slack v. McDaniel, 529 U.S. 473, 484

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(2000)). In order to meet this threshold inquiry, Petitioner has the burden of demonstrating that

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the issues are debatable among jurists of reason, a court could resolve the issues differently, or

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the questions are adequate to deserve encouragement to proceed further. Id.

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The Court has considered the issues raised by Petitioner, with respect to whether they

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satisfy the standard for issuance of a certificate of appealability. The Court finds that none of

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the issues in Petitioner’s 2255 Motion meet that standard. The Court thus will not issue a

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certificate of appealability.

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IV.

CONCLUSION

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IT IS HEREBY ORDERED that Petitioner’s 2255 Motion, (ECF No. 52), is DENIED.

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DATED this _____ day of April, 2019.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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