Lopez-Mendez v. United States of American
Filing
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OPINION AND ORDER. Certificate of appealability DENIED. Case terminated on 8/15/2016.(Signed by Judge Micaela Alvarez) Parties notified.(bgarces, 7)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
CARLOS LOPEZ-MENDEZ,
Plaintiff,
VS.
UNITED STATES OF AMERICAN,
Defendant.
August 15, 2016
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 7:16-CV-11
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OPINION AND ORDER
Pending before the Court is a Motion Under 28 U.S.C. § 2255 or Alternatively Under 28
U.S.C. § 22411 filed by Petitioner Carlos Lopez Mendez (“Petitioner”). The Government has
filed a response seeking dismissal or, alternatively, summary judgement. After considering the
motion, response and applicable law, the motion is DISMISSED.
I.
Brief Background
Petitioner was charged and convicted of violating 8 U.S.C. 1326. He was subsequently
sentenced to a term of imprisonment which he is currently serving. Petitioner’s judgment is now
final as the Fifth Circuit dismissed his appeal and the time to file a petition for writ of certiorari
has now expired. In the instant motion, Petitioner asserts he is entitled to relief pursuant to
Johnson v. United States.2 His motion is proper under 28 U.S.C. § 2255, rather than § 2241.
II.
Discussion
Under Title 28, United States Code, Section 2255 a federal prisoner who claims that his
“sentence was imposed in violation of the Constitution or laws of the United States . . . or that
the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or correct
the sentence.”3 Upon the filing of such a petition, the sentencing court must order a hearing to
determine the issues and findings of fact “[u]nless the motions and the files and records of the
case conclusively show that the prisoner is entitled to no relief . . . .”4
Here, Petitioner claims relief pursuant to Johnson v. United States.5 Because Petitioner
raises a constitutional challenge to his sentence, his motion is properly asserted pursuant to 28
U.S.C. § 2255. However, Petitioner’s motion fails for various reasons.
1
Dkt. No. 1.
135 S. Ct. 2552 (2016).
3
28 U.S.C. § 2255.
4
Id.
5
135 S.Ct. 2551 (2015).
2
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In Johnson v. United States, the Supreme Court found the “residual clause” of the Armed
Career Criminal Act (“ACCA”) to be unconstitutionally vague6 and then in Welch v. United
States7 the Supreme Court held that the Johnson holding should be applied retroactively. Thus,
a prisoner sentenced pursuant to the ACCA may be entitled to relief. Significant to the Court’s
decision here, Petitioner was not sentenced under the ACCA. Rather, Petitioner was convicted
of violating 8 U.S.C. § 1326 and was sentenced pursuant to that statute. To the extent Petitioner
claims the Johnson holding is applicable to sentencing guideline enhancements based on the
crime of violence definition found in 18 U.S.C. § 16(b), the Fifth Circuit very recently rejected
that argument in United States v. Gonzalez-Longoria.8 Furthermore, to the extent the Supreme
Court eventually holds the Johnson holding applies to the Sentencing Guidelines, Petitioner did
not receive a 18 U.S.C. § 16(b). Rather, Petitioner’s enhancement was based on an enumerated
offense. Therefore, Johnson does not afford Petitioner any relief. As a final matter, Petitioner’s
motion is untimely.
III.
Conclusion
It is clear from the face of Petitioner's Motion, as well as the record as it currently stands,
that Petitioner is not entitled to relief under 28 U.S.C. § 2255 or under 28 U.S.C. § 2241.
Accordingly, the government’s motion to dismiss is GRANTED; Petitioner's Motion Under 28
U.S.C. § 2255 is thus DISMISSED. Additionally, should Petitioner seek a certificate of
appealability, such is DENIED.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 15th day of August, 2016.
___________________________________
Micaela Alvarez
United States District Judge
6
Id.
136 S.Ct. 1257 (2016).
8
No. 15-40041 (Fifth Circuit filed August 5, 2016).
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