Garza v USA

Filing 4

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Francisco Cabrera Garza. It is accordingly recommended that the motion to vacate, set aside or correct the sentence s hould be dismissed without prejudice to Movant's right to file a motion for leave to file a second or successive § 2255 motion in the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. §§ 2244(b)(3)(A), 2255. Signed by Magistrate Judge Don D. Bush on 3/15/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

FRANCISCO C. GARZA, #10356-078

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 4:10cv433
CRIMINAL ACTION NO. 4:02cr100(15)

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Movant Francisco Cabrera Garza filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255, challenging constitutional violations concerning his Eastern District
of Texas, Sherman Division conviction in Case No. 4:02cr100(15). The motion was referred for
findings of fact, conclusions of law and recommendations for the disposition of the case.
Background
On September 20, 2006, Movant was sentenced to 360 months’ imprisonment after a jury
found him guilty of conspiracy to distribute or dispense or possess with intent to distribute or
dispense 3,4-methylenedioxy-methamphetamine (“MDMA” or “Ecstasy”), Methamphetamine,
cocaine, and Gama Hydroxybutyrate (“GHB”). The Court assessed this punishment following a
remand by the Fifth Circuit. He did not file a direct appeal challenging the 360-month sentence from
September 26, 2006.
In the present motion, Movant asserts that he is entitled to relief because his trial counsel was
ineffective and because the trial court erred in sentencing. The Government was not ordered to file

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a Response.
Successive 2255 Motions
A second or successive motion filed by a person attacking a sentence under 28 U.S.C. § 2255
must be certified as provided in 28 U.S.C. § 2244 by a panel of the appropriate court of appeals
before it can be heard in the district court. See In re Elwood, 408 F.3d 211, 212 (5th Cir. 2005).
Movant has filed several federal petitions for habeas relief, all of which have been denied.
Because Movant filed a previous motion under § 2255, which was denied because it was
time-barred, this court lacks jurisdiction to consider the present motion unless leave to file the same
is granted by the Court of Appeals for the Fifth Circuit. United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000). Therefore, the present motion should be dismissed for want of jurisdiction because
Movant has not shown that he obtained permission from the Fifth Circuit to file a successive § 2255
motion. Id.
Recommendation
It is accordingly recommended that the motion to vacate, set aside or correct the sentence
should be dismissed without prejudice to Movant’s right to file a motion for leave to file a second
or successive § 2255 motion in the United States Court of Appeals for the Fifth Circuit pursuant to
28 U.S.C. §§ 2244(b)(3)(A), 2255.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
de novo review by the district judge of those findings, conclusions and recommendations and, except
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on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 14th day of March, 2012.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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