Ortiz-Minor v. United States of America
OPINION AND ORDER re Motion Under 28 U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence; Governments motion to dismiss; Case terminated on 2/10/2017. Should Petitioner seek a certificate of appealability, such is DENIED. (Signed by Judge Micaela Alvarez) Parties notified.(bgarces, 7)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
United States District Court
Southern District of Texas
February 10, 2017
David J. Bradley, Clerk
UNITED STATES OF AMERICA
§ CIVIL ACTION NO. 7:16-CV-353
§ Criminal No. 7:14-cr-1646
OPINION AND ORDER
Pending before the Court is a Motion Under 28 U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody1 filed by Petitioner Noe Ortiz-Minor (APetitioner@) to which the Government
responded with a Motion to Dismiss.2 After considering Petitioner’s motion, the Government’s motion to
dismiss and applicable law, the Government’s motion is GRANTED and Petitioner’s motion is DISMISSED.
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.3
Under Title 28, United States Code, Section 2255 a federal prisoner who claims that his Asentence 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.@4 Upon the filing of such a petition, the sentencing
court must order a hearing to determine the issues and findings of fact A[u]nless the motions and the files and
records of the case conclusively show that the prisoner is entitled to no relief . . . .@5
Here, Petitioner claims relief pursuant to Johnson v. United States.6 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 two reasons.
Dkt. No. 1.
Dkt. No. 4.
135 S. Ct. 2552 (2016).
28 U.S.C. ' 2255.
135 S.Ct. 2551 (2015).
In Johnson v. United States, the Supreme Court found the Aresidual clause@ of the Armed Career
Criminal Act (AACCA@) to be unconstitutionally vague7 and then in Welch v. United States8 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.9 Furthermore, Petitioner did not receive a ' 16(b)
enhancement. Therefore, Johnson does not afford Petitioner any relief.
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. Accordingly, the Government’s motion to dismiss is
GRANTED and Petitioner's Motion to Correct, Vacate, or Set Aside Sentence is DISMISSED. Additionally,
should Petitioner seek a certificate of appealability, such is DENIED.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 10th day of February, 2017.
United States District Judge
136 S.Ct. 1257 (2016).
No. 15-40041 (Fifth Circuit filed August 5, 2016).
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