Gonzalez v. USA

Filing 8

Memorandum Opinion and Order. The court ORDERS that the motion of Maria Jesus Gonzalez under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence be, and is hereby, dismissed... 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. (Ordered by Judge John McBryde on 1/28/2016) (trt)

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FORT WORTH DIVISION

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MARIA JESUS GONZALEZ,

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Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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DI'jl\11.1

NO. 4:15-CV-925-A
(NO. 4:12-CR-098-A)

MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion of movant, Maria Jesus
Gonzalez, under 28 U.S.C.
sentence.

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2255 to vacate, set aside, or correct

Having reviewed such motion, the government's response

thereto, the reply, the record, and applicable legal authorities,
the court concludes that the motion should be dismissed.
I.

Background
After pleading guilty to distribution of heroin, movant was
sentenced on October 26, 2012, to a term of imprisonment of 168
months. CR Doc. 1 43; 58.

Movant appealed, and the Fifth Circuit

affirmed movant's conviction on October 25, 2013 . United States
v. Gonzalez, 543 F. App•x 416 (5th Cir. 2013).

Movant's

conviction became final on January 23, 2014, the last day she

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The "CR Doc._" references are to the numbers assigned to the referenced documents on the
docket of the underlying criminal case, No. 4: 12-CV-098-A.

could have filed a petition for writ of certiorari.' Movant did
not file the instant motion until December 4' 2015, well beyond
one year after her conviction became final.

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Doc. 4 1.

II.

Analysis
A.

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2255 Limitations Period

A one-year period of limitations applies to motions under 28
U.S.C.

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2255 to vacate, set aside, or correct sentence.

U.S. C.

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22 55 (f) . 5

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(T] he conviction becomes final, and the

one-year period begins to run, upon expiration of the time for
seeking certiorari in the U.S. Supreme Court, even where, as
here, the appellant has not actually filed such a petition." Clay
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A petition for writ of certiorari is timely when filed with the clerk of the Supreme Com1 within
ninety days after entry of judgment. See Sup. Ct. R. 13.
'Even if the date of filing is November 18, 2015, the date the motion was purportedly signed, the
motion is still overdue by 299 days.
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The "Doc." reference is to the number assigned to the referenced document on the docket of this
civil action, No. 4: I 5-CV -925-A.
'Section 2255(!) provides that:
A !-year period of limitation shall apply to a motion under this section. The limitation
period shall run from the latest of-(!) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme
Cout1, if that right has been newly recognized by the Supreme Com1 and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts suppot1ing the claim or claims presented could have
been discovet·ed through the exercise of due diligence.
2

v. United States, 537 U.S. 522, 527 (2003); United States v.
Gamble, 208 F. 3d 536, 536 (5th Cir. 2000).
B.

Movant's

2255 Motion is Not Timely Filed

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Apparently recognizing that her motion would be considered
barred by limitations, movant recites that her motion is subject
to a one-year period of limitations that runs from the date the
facts underlying her claim could have been discovered. Doc. 1 at
10

(numbered 11 on the printed form). However, she then appears

to argue that the time runs from her discovery of the claim
through "consistent research of the law." Id. Movant does not
cite to any facts discovered through the exercise of diligence.
Indeed, she could not, as she relies on facts contained in the
presentence report that she says are inaccurate. Of course, those
facts have been known to her all along.
Movant next refers to the recent Supreme Court decision of
Johnson v. United States, 135 S. Ct. 2551 (2015); Doc. 1 at 11
(numbered 12 on the printed form) . 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. Section
2255 (f) (3) allows a

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2255 motion to be filed within one year

from "the date on which the right asserted was initially

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The Armed Career Criminal Act ("ACCA") prevents felons from possessing firearms. 18

u.s.c. § 922(g).

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recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review."

28 U.S.C.

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2255(f)(3). The

court can only guess as to how Johnson would have any application
to this case. In any event, the Fifth Circuit has determined that
Johnson does not apply retroactively. In re Williams, 806 F.3d
322, 325-26 (5th Cir. 2015). 7
III.

Order
Therefore,
The court ORDERS that the motion of Maria Jesus Gonzalez
under 28 U.S.C.

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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 ll(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
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2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,

'The cou1i recognizes that the retroactivity of Johnson is presently before the Supreme Court,
but, as stated, Johnson appears to have no bearing on this case in any event.
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denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED January 28, 2016.

District

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