Villanueva v. United States of America

Filing 2

MEMORANDUM OPINION as to Gabriel Rubio Villanueva re Motion to Reduce Sentence. It is therefore ordered, adjudged and decreed that this petition is hereby transferred to the Fifth Circuit as successive pursuant to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). The clerk of court is directed to open a new civil action pursuant to § 2255 (nature of suit 510). (Ordered by Judge Sam A Lindsay on 1/10/2018) (aaa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES OF AMERICA
v.
GABRIEL RUBIO VILLANUEVA

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CRIMINAL NO. 3:13-CR-064-L

MEMORANDUM OPINION
Before the court is Defendant Gabriel Rubio Villanueva’s (“Defendant”) Motion to Review
Sentence, filed November 21, 2017, which the court construes as a motion to vacate, set aside, or
correct sentence pursuant 28 U.S.C. § 2255.
I.
Defendant pled guilty without a plea agreement to illegal reentry after removal in violation
of 8 U.S.C. §§ 1326(a) and (b)(2). On December 2, 2013, the court sentenced him to 72 months in
prison. On August 18, 2014, the Fifth Circuit Court of Appeals dismissed his appeal finding there
were no non-frivolous issues.
On May 11, 2015, Defendant filed his first § 2255 petition. See Villanueva v. United States,
No. 3:15-CV-1645-L (N.D. Tex.). On October 7, 2017, the court denied the petition on the merits.
Defendant did not file an appeal.
On November 13, 2017, Defendant filed the instant motion. He argues his sentence is
unlawful under Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v. United States, 136
S.Ct. 2243 (2016). In Johnson, the Supreme Court invalidated the residual clause of the Armed
Career Criminal Act (“ACCA”). In Mathis, the Supreme Court outlined the process by which a

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district court should determine, for the purposes of the ACCA, if a defendant’s prior state-court
conviction was one of the enumerated violent felonies listed in 18 U.S.C. § 924(e)(2)(B)(ii).
II.
Defendant seeks to attack his criminal judgment and sentence; therefore, the court construes
the motion as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. See
Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (“Section 2255 provides the primary means
of collaterally attacking a federal conviction and sentence.”); Cox v. Warden, Fed. Detention Center,
911 F.2d 1111, 1113 (5th Cir. 1990) (same).
The Antiterrorism and Effective Death Penalty Act of 1996, however, limits the
circumstances under which a federal prisoner may file a second or successive motion for postconviction relief. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub. L. 104-132, 110 Stat.
1214 (1996). A petitioner must show that the successive motion is based on: (1) newly discovered
evidence that, if proved and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable factfinder would have found him guilty
of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255. This determination must
be made by a three-judge panel of the court of appeals before petitioner files his motion in district
court. 28 U.S.C. §§ 2241 and 2255. The Fifth Circuit has not issued an order authorizing this court
to consider the successive petition. Defendant must obtain such an order before another petition for
post-conviction relief is filed.

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It is therefore ordered, adjudged and decreed that this petition is hereby transferred to
the Fifth Circuit as successive pursuant to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). The clerk
of court is directed to open a new civil action pursuant to § 2255 (nature of suit 510).
It is so ordered this 10th day of January, 2018.

_________________________________
Sam A. Lindsay
United States District Judge

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