Valdez v. United States of America
Filing
6
Memorandum Opinion and Order...Motion under 28 USC 2255 to vacate is dismissed, certificate of appealability is denied. (Ordered by Judge John McBryde on 12/31/2015) (wrb)
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IN THE UNITED STATES DISTRICT CO
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
SANTIAGO VALDEZ,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
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NO. 4:15-CV-856-A
(NO. 4:11-CR-065-A)
MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion of movant, Santiago
Valdez, under 28 U.S.C.
sentence.
thereto,
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§
2255 to vacate, set aside, or correct
Having reviewed such motion, the government's response
and applicable legal authorities, the court concludes
that the motion should be dismissed.
I.
Background
After pleading guilty to conspiracy to distribute a
controlled substance, movant was sentenced on September 2, 2011,
to a term of imprisonment of 360 months and a five year term of
supervised release. CR. Doc. 2 66.
Movant appealed, and the Fifth
Circuit affirmed movant's conviction on August 14, 2014. United
- A November 9, 2015 court order gave movant the chance to reply to government's response by
December 23, 2015. To date movant has filed no reply. Doc. 4. The "Doc._" references are to the
numbers assigned to the referenced documents on the docket ofthis civil case, No. 4: 15-CV -856-A.
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The "CR Doc. _" references are to the numbers assigned to the referenced documents on the
docket of the underlying criminal proceeding, No.4: 11-CR-065-A.
States v. Valdez, 475 F. App'x. 532
3,
2012,
(5th Cir. 2012). On December
movant filed his first motion under 28 U.S.C. § 2255.
CR. Doc. 105. The court denied movant's first motion under§
2255. 3 The Fifth Circuit affirmed the denial of movant's first
motion under § 2255. United States v. Valdez, 578 F. App'x. 366
(5th Cir. 2014).
II.
Analysis
A.
Second or Successive § 2255 Motions
A second or successive motion under
as provided in 28 U.S.C.
§
court of appeals. 28 U.S.C.
§
2255 must be certified
2244 by a panel of the appropriate
§
2255(h). Movant does not allege
that he has sought or obtained the required relief. The savings
clause of
§
2255 "applies to a claim:
(i) that is based on a
retroactively applicable Supreme Court decision which establishes
that the petitioner may have been convicted of a nonexistent
offense and (ii) that was foreclosed by circuit law at the time
when the claim should have been raised in the petitioner's trial,
appeal, or first
243 F.3d 893, 904
B.
§
2255 motion." Reyes-Reguena v. United States,
(5th Cir. 2001).
Movant's § 2255 Motion is Not Timely Filed
Apparently recognizing that his motion would be considered a
3
Papers on file in petitioner's first motion under§ 2555 are found in No.4: 12-CV-868-A.
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second or successive motion, movant argues that the recent
Supreme Court decision of Johnson v. United States, applies
retroactively on collateral review and that movant's motion is
therefore not second or successive. 135 S. Ct. 2551 (2015); Doc.
1 at 4-5. Johnson held that an increased sentence under the Armed
Career Criminal Act's ("ACCA")
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residual clause violates due
process of law. Id. at 2254-55.
The Supreme Court did not state whether Johnson would apply
retroactively. See 135 S. Ct. 2551. However, the Fifth Circuit
has held that Johnson does not apply retroactively. In re
Williams, 806 F.3d 322, 325 (5th Cir. 2015). Accordingly, movant
is unable to raise an argument under Johnson. Thus, his petition
does not fall within the savings clause for
§
2255 motions
because even if this was his first motion under
§
2255 his
argument would be foreclosed.
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The Armed Career Criminal Act ("ACCA") prevents felons from possessing firearms. 18
U .S.C. § 922(g). If a violator of this statute has three or more convictions for a "serious drug offense" or
"violent felony" the ACCA increase the violator's prison term to a minimum of fifteen years and
maximum of life imprisonment. 18 U.S.C. § 924(e). The ACCA defines violent felony as:
any crime punishable by imprinsonment for a term exceeding one year ... that(i) has as an element the use, attempted use, or threatened use of physical force against the
person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk ofphysical injury to another . ... "
18 U .S.C. § 924( e)(2)(B) (emphasis added). The portion in italics is known as the ACCA's residual
clause and is the portion ofthe statute which Johnson found violated due process of law. Johnson v.
United States, 135 S. Ct. 2551,2554-55 (2015).
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III.
Order
Therefore,
The court ORDERS that the motion of Santiago Valdez under 28
U.S.C.
§
2255 to vacate, set aside, or correct sentence be, and
is hereby, dismissed.
* * * * * *
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
§
2253(c) (2), for the reasons discussed herein, the court further
ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED December 31, 2015.
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