Castro v. USA
Order Accepting Findings and Recommendations and Denying Certificate of Appealability re: 7 Findings and Recommendations on Case re: 1 Motion to Vacate under 28 U.S.C. 2255 filed by Adrian Castro is denied. (Ordered by Senior Judge A. Joe Fish on 11/30/2017) (svc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA,
CIVIL ACTION NO.
CRIMINAL ACTION NO.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
In this habeas case under 28 U.S.C. § 2255, Adrian Castro (petitioner)
challenges his conviction of several counts in Cause No. 3:04-CR-018-G, including
two counts of using, carrying, and brandishing a firearm during or in relation to a
crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (counts two and ten). On
November 9, 2017, the United States Magistrate Judge recommended that the
motion to vacate be denied with prejudice as barred by the statute of limitations.
(See docket entry 7.) Petitioner timely filed objections. After reviewing the
objections and conducting a de novo review of those parts of the findings, conclusions
and recommendation (FCR) to which objections have been made, I am of the opinion
that the findings and conclusions of the magistrate judge are correct, and they are
accepted as the findings and conclusions of the court.
Petitioner challenged his convictions for violating § 924(c) as invalid. He
argued that the definition of a “crime of violence” in § 924(c)(3)(B) of the Armed
Career Criminal Act (ACCA) as an offense “that by its nature, involves a substantial
risk that physical force against the person or property of another may be used in the
course of committing the offense” is unconstitutionally vague in light of Johnson v.
United States, 135 S.Ct. 2551 (2015). He now objects to the recommendation that
his motion be denied as time-barred.
Petitioner contends that the right he asserts was recognized in Johnson, and he
objects to the conclusion that Johnson does not apply to § 924(c)(3)(B). Although he
recognizes that his argument is foreclosed by precedent of the United States Court of
Appeals for the Fifth Circuit, he asserts that the United States Supreme Court
granted a petition for writ of certiorari to consider whether 18 U.S.C. § 16(b), which
is similar to § 924(c)(3)(B), is unconstitutionally vague. See Lynch v. Dimaya, 137
S.Ct. 31 (2016). He notes that there is a circuit split on the issue of the vagueness of
§ 16(b). Compare Golicov v. Lynch, 837 F.3d 1065, 1072 (10th Cir. 2016) (“[h]aving
carefully considered these principles and precedents, we agree with the Sixth,
Seventh, and Ninth Circuits that 18 U.S.C. § 16(b) is not meaningfully
distinguishable from the ACCA’s residual clause and that, as a result, § 16(b), and by
extension 8 U.S.C. § 1101(a)(43)(F), must be deemed unconstitutionally vague in
light of Johnson”), with United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir.
2016) (en banc) (holding that § 16(b) is not unconstitutionally vague).
The Fifth Circuit has held that its decision in Gonzalez-Longoria foreclosed
argument that § 924(c)(3)(B) is unconstitutional in light of Johnson, and that it is
bound by that precedent even though the Supreme Court has granted review in
Dimaya. United States v. Woodard, 697 F. App’x 287, 288 (5th Cir. 2017).
Petitioner’s objections regarding the timeliness of his § 2255 motion based on
whether Johnson applies to § 924(c)(3)(B) are overruled.
Petitioner asks that this court withhold a ruling in his case until the Supreme
Court decides Dimaya. He alternatively asks that his § 2255 motion be dismissed
without prejudice so that he may re-raise the issue if the Supreme Court holds in
Dimaya that the similarly worded § 16(b) is unconstitutionally vague. Additionally,
he requests a certificate of appealability in light of the circuit split on whether that
statute, and by extension § 924(c)(3)(B), is unconstitutionally vague.
Petitioner’s request that the ruling in this case be withheld pending the
decision in Dimaya is also denied. The Fifth Circuit has declined to stay a case
involving the constitutionality of § 16(b) pending the decision in Dimaya. United
States v. Ontiveros-Cedillo, 698 F. App’x 218, 219 (5th Cir. 2017). A dismissal with
prejudice is appropriate. If petitioner seeks to file a successive 28 U.S.C. § 2255
motion at some point in the future, he must comply with the requirements 28 U.S.C.
A de novo review of those parts of the FCR to which objections have been made
shows that petitioner has failed to demonstrate that the order is either clearly
erroneous or is contrary to law. See FED. R. CIV. PROC. 72(a). His objections are
OVERRULED. The findings and conclusions of the magistrate judge are correct,
and they are accepted as the findings and conclusions of the court.
For the reasons stated in the findings, conclusions and recommendation of the
United States Magistrate Judge, the motion to vacate, set aside or correct sentence
filed under 28 U.S.C. § 2255 is DENIED with prejudice as barred by the statute of
In accordance with FED. R. APP. P. 22(b) and 28 U.S.C. § 2253(c) and after
considering the record in this case and the recommendation of the magistrate judge,
petitioner is DENIED a certificate of appealability. Although there is a circuit split
on the issue of the constitutionality of the language in § 924(c)(3)(B), the Fifth
Circuit has resolved the issue in this circuit and has declined the opportunity to
reconsider that decision in light of the grant of certiorari review in Dimaya. The court
adopts and incorporates by reference the magistrate judge’s findings, conclusions and
recommendation in support of its finding that petitioner has failed to show (1) that
reasonable jurists would find this court’s “assessment of the constitutional claims
debatable or wrong,” or (2) that reasonable jurists would find “it debatable whether
the petition states a valid claim of the denial of a constitutional right” and “debatable
whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
If the petitioner files a notice of appeal, he must pay the $505.00 appellate
filing fee or submit a motion to proceed in forma pauperis and a properly signed
certificate of inmate trust account.
November 30, 2017.
A. JOE FISH
Senior United States District Judge
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