Gallegos v. United States of America

Filing 2

MEMORANDUM OPINION AND ORDER dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:16cv1901 (Defendant No. 2) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CARLOS GALLEGOS,
Petitioner/Defendant,

v.
UNITED STATES OF AMERICA,
Respondent/Plaintiff.

§
§
§
§
§
§
§
§
§

June 30, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-1901
(Criminal No. H-05-478-02)

MEMORANDUM OPINION AND ORDER

Defendant,
U.S.C.

§

Carlos

Gallegos,

has

filed

a

Motion Under

28

2255 to Vacate, Set Aside, or Correct Sentence By a Person

in Federal Custody ("§ 2255 Motion")

(Docket Entry No. 276).

The court has carefully reviewed Gallegos' motion as required
by Rule 4(b) of the Rules Governing Section 2255 Proceedings for
the United States District Courts and concludes that a response to
his motion is not required.
On July 26,

2006, Gallegos pleaded guilty to conspiracy to

commit hostage taking in violation of 18 U.S.C.
January 12,

2007,

§

1203(a).

On

the court sentenced Gallegos to 324 months in

prison (Judgment in a Criminal Case, Docket Entry No. 201).

The

United States Court of Appeals for the Fifth Circuit affirmed his
conviction on June 6, 2008 (Docket Entry No. 250).
2009, Gallegos filed a Motion Under 28

u.s.c.

§

On January 15,

2255 to Vacate, Set

Aside, or Correct Sentence By a Person in Federal Custody (Docket

Entry No.

On April 8,

252) .

the court entered an Order

the

2255

dismissing

without

No.

Gallegos then filed an amended

261).

prejudice

2009,
§

Motion
§

(Docket

Entry

2255 Motion (Docket

Entry No. 264-1), which the court denied on July 20, 2010 (Docket
Entry No. 272) .
In his pending

§

2255 Motion Gallegos argues

that he

is

entitled to relief because of the retroactive effect of Johnson v.
United States, 135 S. Ct. 2551 (2015).

In Johnson the Court held

that the residual clause of the Armed Career Criminal Act (ACCA) ,
18 U.S.C.

924(e) (2) (B) (ii), for purposes of sentence enhancement

§

for a felon's possession of a firearm was unconstitutionally vague.
In Welch v. United States, 136 S. Ct. 1257 (2016), the Court held
that its decision in Johnson announced a

substantive rule that

applied retroactively on collateral review.
In his

§

2255 Motion Gallegos alleges "Johnson/Welch decision

which could affect petitioner.
No. 276, p. 4)
18 U.S.C.

§

11

(§

2255

Docket Entry

Gallegos' sentence was not based on the ACCA or on

16, and neither the ACCA nor 18 U.S.C.

his advisory sentencing guideline range.
guideline

Motion,

range

affected

by

any

§

16 affected

Nor was his sentencing

provision

of

guidelines that used the term "crime of violence.

the
11

sentencing
Gallegos is

therefore not entitled to relief based on Johnson.
28 U.S.C.

§

2255(h) states:

A second or successive motion must be certified
as provided in section 2244 by a panel of the
appropriate court of appeals to contain-2-

(1)
newly discovered evidence that, if proven
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 the movant 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.
This

provision

jurisdictional
successive

bar

habeas

and

to

a

28

U.S.C.

district

petition

until

§

2244(b) (3) (A)

court's
the

act

as

a

consideration

of

a

court

authorized the district court to consider it.
explained above,
§

§

2255(h) (2) does not apply.

of

appeals

has

For the reasons
Because Gallegos'

2255 Motion is successive and he has not obtained authorization

from the United States Court of Appeals for this court to consider
it,

his Motion Under 28 U.S.C.

Correct Sentence By a

§

2255 to Vacate,

Set Aside,

or

Person in Federal Custody

(Docket Entry

The Clerk of Court is ORDERED to provide a

copy of this

No. 276) is DISMISSED.

Memorandum Opinion and Order to Gallegos and to the United States
Attorney for the Southern District of Texas, and to file a copy of
this

Memorandum Opinion and

Order

in

the

corresponding

civil

action.
SIGNED at Houston, Texas, on this the 30th day of June, 2016.

UNITED STATES DISTRICT JUDGE
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