Newton v. United States of America
Filing
5
Copy of MEMORANDUM OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed in 4:19-cr-816-1. COA is denied. (Signed by Judge Sim Lake) Parties notified. (glc4)
(
United States District Court
Southern District of Texas
ENTERED
May 09, 2024
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,
Nathan Ochsner, Clerk
§
§
Plaintiff/Respondent,
§
§
v.
§
S YE NEWTON,
§
CRIMINAL NUMBER H-19-816-01
(CIVIL ACTION NO. H-24-0121)
§
§
Defendant/Petitioner.
§
MEMORANDUM OPINION AND ORDER
Sye Newton ("Petitiorier~) was convicted of bank robbery and
brandishing a firearm in furtherance of a crime of violence in this
court. 1
The court sentenced Petitioner to 360 months in custody. 2
Pending before the court are Petitioner's Motion for Evidentiary
Hearing in Support of Alibi Employment Records ( "Motion for Hearing
Re Alibi")
(Docket Entry No.
187),
Petitioner's ·Title 28 U.S.C.
§ 2255 Writ of Habeas Corpus ("Petitioner's§ 2255 Motion")
(Docket
Entry No. 191), and the United States' Answer to 28 U.S.C. § 2255
Motion and Motion for Summary Judgment ("Government.- s MSJ")
(Docket
1
Indictment, Docket Entry No. 1, pp. 1-2; Verdict of the Jury
Form ("Verdict"), Docket Entry No. 78, pp." 1-2 . . for purppses .. of
identificati Verdict on all page numbers reference the pagination
imprinted at the top of the page by the court's Electronic Case
Filing ("ECF") system.
2
Judgm~nf in a Criminal Case, Docket Enfry No. 128, p. 2.
Entry No. 204) . 3
For the reasons stated below, Pet:itioner' s Motion
-
-
for Hearing Re Alibi and Petitioner's§ 22~5 MotioThwill-be denied,
the G~vernment' s MSJ. will be granted, and the _accompanying civil
action will be dismissed with prejudice.
I.
A.
Background
Petitioner's Indictment, Trial, and Sentencing
Petitioner was inciict~d on November 6, 2019, on one count of
bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) and one
count
of brandishing
a
firearm
during
a
violation of 18 U.S.C. § 924 (c) (1) (A) (ii) . 4
crime - of violence
in
The Indictment alleged
that on March 25, 2019, Petitioner took $15,742 from an IBC Bank in
Houston,
Texas,
and that Petitioner brandished a firearm in the
process. 5
At trial witnesses testified about a March 25, 2019, robbery
at an IBC Bank at 8203 South Kirkwood Drive in Houston,
The robber - wearing a hijab - had a gun in his hand. 7
Texas. 6
The robber
yelled for bank patrons to· get down and obtained i:nOney from each of
3
The court
Government."
•
4
hereafter
refers
to
the
United States
as
"the
Iridict~eni, Docket Eritry No. 1, pp. 1-2.·
6
Transcript of Jury· ·Trial • Proceedings _:_ Day ·1> of Two ("Day •1
Trial Transcript"), Docket Entry-No. 168, p .. 78 lines 9-10, p. 80
lines 17-25,- p·: 82 lines 18~25, p. 86 lines 6-25, p. 91 lines -9-1-4,
p. 118 lines 21-22, p. 119 lines 18-21, p. 126 lipes 8-23, p. 131
lines 18~19, p. 132 lines 6-17, p. 136 lines 4-25,
137 lines 1-8.
t.
~Id. at· 86lines 14·~20;, p. 124 lines 11-12;·p.-134 lines 10~18;
Government's Exhibit 4, Docket Entry No. 136-2.
-2-
th~ tellers at, gunpoint~ 8
Witnesses identified the robber-as a
male based on.his voice and face.
9
_
After the robber left the bank, one patrcin want outside, saw
the robber, and- began following him bT car. 10
•
The patron testified
that he saw the robber take off his disguise arid throw it in a
dumpster. 11
female. 12
The patron
saw
the
robber
get
int-6
a
car with
a
The patron followed them to a Valero gas station and took
a photo of the car -
a Eord_Escape with iic~ri$e plate FCP 0317. 13
After some further pursuit, the patron retrirned to the Valero and
showed the photo of the car to a nearby officer. 14
Two days
later a
Houston Police Department
("HPD")
patrol
officer respor1ded to a nearby. complaint· about •an i1legally 191~ p.· 1.
46
Government's MSJ, Docket Entry No. 204, p. 1-2; Affidavit in
Support of Objection to Presentence Investigation Report, Docket
Entry No.' 123, pp . .2.,..3.
-18-
Moreover,
Petitioner
has
not
cited
cases
holding
that
a
prior
conviction may not be considered in guidelines ca~culation merely
because a co],lateral attack is pending' against the prior conv:(ction.
Petiti~ner~~ challenge to his sentence therefore fa{ls.
IV.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2255 Proceedings states
that
a
district
appealability
applicant."
court
when
"must
it
issue
enters
a
or
final
deny
order
a
certificate
adverse
to
of
the
A certificate of appealability will not issue unless
the applicant makes
"a substantial
constitutional right," 28 U. S ..c.
§
showing of the denial of a
2253 (c) (2), which requires an
applicant to demonstrate "that 'reasonable jurists would find the
district court's assessment of the constitutional claims debatable
2565
(2004)
(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
Under
or wrong. ' "
Tennard v.
Dretke,
124
S.
Ct.
2552,
that controlling.standard this requires apetitio'ner to show "that
reasonable jurists could debate whether (or, for that matter, agree
that) the p~titibn should bave been resolved in a different manner
or that the issues presented were adequate to deserve encouragement
to proceed further."
Miller-El v. Cockre11, 123 s·. Ct. 1029r 1039
(2003). (internal quotation marks omitted):.·
A· district court may deny a certificate of,. appealability,
sua sponte, without requiring further briefing or argument:
Alexander - v •• Johnson,
curiam) .
211
F. 3d . 8 95,
8 98
( 5th Cir.
See
2000} · (per
The cbl!rt concludes .that reasonable j u"rists could not
-19-
find any of Petitioner's· clai~s meritorious, so a c~rtifi6ate· of
appealability will be denied.
V.
Conclusion and Order
Petitioner's new evidence in support of his El Paso alibi does
not warrant an evidentiary hearing or a new trial.
Motion
Records
for
Evidentiary Hearing
(Docket
Entry
No.
in Support
187)
is
Petitioner's
of Alibi
therefore
Employment
DENIED.
As
to
Petitioner's§ 2255 Motion, Petitioner has failed to establish or
has
procedurally defaulted each of his
conviction and sentence.
claims
challenging his
Therefore, Petitioner's Title 28 U.S.C.
§ 2255 Writ of Habeas Corpus (Docket Entry No. 191) is DENIED, the
United States' Motion for Summary Judgment (Do~ket Entry No. 204)
is
GRANTED,
No.
and
H-24-0121)
the
accompanying
civil
action
will be dismissed wit.h prejudice.
(Civil
Action
Because the
record concl~sively sho~s that Petitioner is not:entitled to any
..
.
.
relief, the court need not grant an evidentiary hearing.
reasonable
Because
jurists could not find any of Petitioner's ass·erted
claims meritorious, a certificate of appealabil'i t~~ is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to th~ partie~.
SIGNED at Houston, Texas,· on this the· 9th· day of May,· 2024.
7
SIM LAKE
SENIOR UNITED .STATES DISTRICT JUDGE
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