Everist v. USA

Filing 23

MEMORANDUM ORDER partially adopting 15 Report and Recommendation.. Signed by District Judge Thad Heartfield on 11/15/2017. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JOSEPH LELAND EVERIST

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 1:16-CV-212

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant, Joseph Leland Everist, proceeding pro se, filed this motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 based on the theory that Johnson v. United States, 135
S.Ct. 2251 (2015) applies to the career offender sentencing guidelines.
The Court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends this motion to vacate, set aside, or correct sentence be denied as
the Supreme Court determined in Beckles v. United States that Johnson does not apply to the
sentencing guidelines. 2017 WL 855781 (Mar. 6, 2017).
Movant filed objections on April 24, 2017 (docket entry no. 20). After a review of the
objections, the Magistrate Judge ordered the United States to file a supplemental response which was
filed on July 20, 2017 (docket entry nos. 21 & 22). A review of the underlying criminal docket
revealed that the BOP notified the Court that movant passed away on October 9, 2017. 1:00-CR-67
(docket entry no. 87).
Federal courts are said to be courts of “limited jurisdiction.” See County Court of Ulster
County, N.Y. v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Under Article III,
Section 2 of the Constitution, the judicial power of the United States Government extends only to
“Cases” or “Controversies.” The “case or controversy” requirement demands, inter alia, that a cause
of action before a federal court present a “justiciable” controversy. “[N]o justiciable controversy is
presented . . . when the question sought to be adjudicated has been mooted by subsequent

developments.” Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Due to
movant’s death, the requested relief is no longer possible and the motion to vacate, set aside or
correct sentence is moot.
ORDER
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct,
and the report of the Magistrate Judge is PARTIALLY ADOPTED. A final judgment will be
entered in this case in accordance with the Magistrate Judge’s recommendations.
SIGNED this the 15 day of November, 2017.

____________________________
Thad Heartfield
United States District Judge

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