Herrod v. USA

Filing 14

ORDER OF DISMISSAL ADOPTING 12 Report and Recommendation of United States Magistrate Judge. ORDERED that Herrod's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All other motions not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 9/14/2017. (daj, )

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

DEMONT MENASCO HERROD, #19154-078 §
VS.

§

UNITED STATES OF AMERICA

CIVIL ACTION NO. 4:16cv482
CRIMINAL NO. 4:11CR00176-001

§
ORDER OF DISMISSAL

Movant Demont Menasco Herrod, a prisoner confined at F.C.I. Beaumont, brings this motion
to vacate, set aide or correct his sentence pursuant to 28 U.S.C. § 2255. The motion was referred to
United States Magistrate Judge Christine A. Nowak, who issued a Report and Recommendation (Dkt
#12) concluding that the motion should be denied. Herrod has filed objections (Dkt #13).
Herrod is in custody pursuant to a conviction for the offense of conspiracy to distribute and
possess with intent to distribute 5 kilograms or more of cocaine and 1,000 kilograms or more of
marijuana, in violation of 21 U.S.C. § 846. On June 14, 2013, Herrod was sentenced to 175 months
of imprisonment. The sentence was formally entered on July 3, 2013. On February 19, 2015, the
conviction was affirmed. United States v. Herrod, 595 F. App’x 402, 412 (5th Cir. 2015). Herrod did
not file a petition for a writ of certiorari.
The present proceedings were begun on July 1, 2016. Herrod focuses on the United States
Sentencing Guidelines. Based on his criminal history, he qualified as a career offender under United
States Sentencing Guidelines § 4B1.1. PSR ¶ 27. He argues that he should not have been sentenced
as a career offender in light of the United States Supreme Court’s ruling in Johnson v. United States,
135 S. Ct. 2551(2015). Johnson, however, concerns the application of a criminal statute, as opposed
to the Sentencing Guidelines. The Supreme Court recently declined to extend the reasoning in
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Johnson to the Sentencing Guidelines. Beckles v. United States, 137 S. Ct. 886, 895 (2017). The
present motion lacks merit in light of Beckles.
In his objections, Herrod again argues that he should not have been sentenced as a career
offender under the Sentencing Guidelines. Since Beckles was decided, the Fifth Circuit has repeatedly
rejected cases by inmates trying to extend Johnson to the Sentencing Guidelines. United States v.
Dotson, ___ F. App’x ___, 2017 WL 3098172, at *1 (5th Cir. July 20, 2017); United States v. Taylor,
___ F. App’x ___, 2017 WL 2703680 (5th Cir. June 21, 2017); United States v. Holley, 689 F. App’x
230 (5th Cir. 2017); United States v. Garces, 686 F. App’x 252 (5th Cir. 2017); United States v.
Martinez, 682 F. App’x 304 (5th Cir. 2017). Moreover, the Fifth Circuit has repeatedly held that the
technical application of the United States Sentencing Guidelines does not raise an issue of
constitutional dimension for purposes of § 2255 proceedings. United States v. Cervantes, 132 F.3d
1106, 1109 (5th Cir. 1998); United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). The type of
claim Herrod is bringing in this case is not cognizable in a § 2255 proceeding.
In light of the foregoing, the Government argues that the motion is time-barred. On April 24,
1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was signed into law.
A one year statute of limitations was enacted for motions to vacate, set aside or correct a sentence. 28
U.S.C. § 2255(f). In general, a movant for collateral relief has one year from “the date on which the
judgment became final” to file a motion challenging his conviction. 28 U.S.C. § 2255(f)(1). The
Supreme Court has held that when a federal criminal defendant does not file a petition for certiorari
on direct review, the one-year statute of limitations period starts to run when the time for seeking such
review expires. Clay v. United States, 537 U.S. 522, 532 (2003). In such cases, a conviction is final
ninety days after the appellate court issues a decision. Id. See Sup. Ct. R. 13(1).
In the present case, the Fifth Circuit affirmed Herrod’s conviction on February 19, 2015. The
conviction became final ninety days later since Herrod did not file a petition for a writ of certiorari.
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It became final on May 20, 2015. The present motion was due no later than one year later on May 20,
2016. It was not filed until June 20, 2016 (utilizing the “mailbox rule”). The motion was not timely
filed. Moreover, because the Supreme Court did not hold that Johnson applies to guideline career
offenders on collateral review, the motion is not subject to the alternative deadline provided by 28
U.S.C. § 2255(f)(3). The present § 2255 motion is time-barred and otherwise without merit.
Herrod’s objections focus solely on the claim that he was wrongfully sentenced as a career
offender under the United States Sentencing Guidelines. He argues that he should be granted relief
despite Johnson and Beckles. See Objections, page 4. Nonetheless, the case law on this matter is clear
that Herrod’s claim is not cognizable in a § 2255 proceeding. Moreover, he failed to show or address
the conclusion that the present § 2255 motion is time-barred. Relief is unavailable.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Herrod to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and Herrod’s objections are
without merit. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate

.

Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that Herrod’s motion to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. A certificate of appealability
is DENIED. All other motions not previously ruled on are hereby DENIED.

SIGNED this 14th day of September, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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