United States District Court, W.D. Washington, Seattle
Richard A. Jones United States District Judge
matter comes before the Court on Petitioner Corey Eugene
Gill's Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct a Sentence by a Person in Federal Custody.
Dkt. # 1. For the reasons that follow, the Court
DENIES Mr. Gill's Motion. Dkt. # 5.
10, 2011, Mr. Gill pleaded guilty to seven counts of bank
robbery in violation of 18 U.S.C. § 2113(a). United
States v. Cory Eugene Gill, Case No. CR11-77-RAJ, Dkt.
## 5-6 (W.D. Wash. May 10, 2011). During sentencing, the
Court determined that Mr. Gill qualified as a career offender
under § 4B1.1 of the 2010 United States Sentencing
Guidelines (“U.S.S.G.”) because his bank robbery
convictions and his two previous bank robbery convictions
were “crimes of violence, ” a term defined by
U.S.S.G. § 4B1.2(a). Based on this determination, the
Court found that the appropriate sentencing guideline range
was 151 to 188 months. Gill, Case No. CR11-77-RAJ,
Dkt. # 14 at 3-5. The Court sentenced Mr. Gill to three
concurrent terms of 50 months to be served consecutively with
a 108-month sentence previously imposed by the Northern
District of Texas for a bank robbery in Irving, Texas, which
amounted to an effective prison term of 158 months.
Gill, Case No. CR11-77-RAJ, Dkt. # 14 at 30.
15, 2016, Mr. Gill filed a § 2255 petition challenging
the Court's determination that he qualified as a career
offender under § 4B1.1. Mr. Gill's petition was
based on the holding in Johnson v. United States,
135 S.Ct. 2551 (2015) (“Johnson II”). In
Johnson II, the Supreme Court held that imposing an
increased sentence under the residual clause of the Armed
Career Criminal Act (“ACCA”) violated the
Constitution's guarantee of due process. Id. Mr.
Gill was sentenced under the residual clause of U.S.S.G
§ 4B1.2(a), which the Court found was identical to the
residual clause under ACCA. Gill, CV16-933RAJ, Dkt.
# 14 at 3. On February 7, 2017, the Court granted Mr.
Gill's motion, finding that Mr. Gill was erroneously
sentenced as a career offender. Gill, CV16-933RAJ,
Dkt. # 14 at 8. Shortly after the Court's Order, the
Supreme Court decided Beckles v. United States, 137
S.Ct. 886 (2017). In Beckles, the Supreme Court held
that the U.S.S.G., including § 4B1.2(a)'s residual
clause, are not subject to vagueness challenges under the
Constitution's due process clause. Id. The
Government filed a stipulated motion requesting that the
Court reconsider its February 7, 2017 Order. Gill,
CV16-933RAJ, Dkt # 16. On March 17, 2017, the Court vacated
its prior Order in light of Beckles, and granted Mr.
Gill's request to withdraw his original § 2255
petition. Id, Dkt # 17.
10, 2017, Mr. Gill filed the instant § 2255 petition
arguing that his Nevada conviction is not a crime of violence
based on Supreme Court precedent, and that the Supreme Court
has created a new rule of constitutional law made retroactive
to his case. Dkt. # 1. The Government opposes the motion.
Dkt. # 5.
28 U.S.C. § 2255(a), a federal prisoner may file a
motion to vacate, set aside, or correct his or her 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. § 2253(c), there is no right to appeal from a
final order in a proceeding under section 2255 unless a
circuit judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B).
Second or Successive Petition.
Government argues that Mr. Gill's instant petition is the
functional equivalent of a second or successive petition, and
thus should be summarily dismissed and/or transferred to the
Ninth Circuit. Dkt. # 5 at 7. Under § 2255, a motion to
vacate a sentence is considered second or successive if the
original petition filed by the movant challenged the same
conviction or sentence and the petition was adjudicated on
the merits or dismissed with prejudice. Green v.
White, 223 F.3d 1001 (9th Cir. 2000). The Court granted
Mr. Gill's request to withdraw his original § 2255
petition when the court vacated its February 7, 2017 Order in
light of Beckles v. United States. Gill,
CV16-933RAJ, Dkt # 17. Thus, Mr. Gill's petition is not a
second or successive petition within the meaning of 28 U.S.C.
§ 2255(h)(2). See Slack v. McDaniel, 529 U.S.
473, 478 (2000) (noting a habeas petition that is filed after
a prior petition was dismissed without adjudication on the
merits is not a second or successive petition as that term is
understood in the habeas corpus context).
Gill's judgments of conviction were entered on August 4,
2011. Gill, CR11- 77RAJ, Dkt # 11. Mr. Gill did not
seek direct appeal, so his conviction became final upon
expiration of the time during which he could have sought
review by direct appeal. United States v. Schwartz,274 F.3d 1220, 1223 (9th Cir.2001). Mr. Gill's conviction
became final on August 18, ...