Tamez v. United States Of America

Filing 7

MEMORANDUM OPINION AND ORDER. A certificate of appealability is Denied. (Signed by Judge Drew B Tipton) Parties notified. (jen7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
UNITED STATES OF AMERICA
VS.
FRANCISCO TAMEZ

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March 06, 2025
Nathan Ochsner, Clerk

Civil Case No. 7:23-CV-00313
Criminal Case No. 7:19-CR-01205-014

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant/Movant Francisco Tamez’s pro se motion
to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (the “Motion”), (Dkt.
No. 1), to which the United States of America (the “Government”) has responded, (Dkt.
No. 6).1 For the reasons stated below, Tamez’s Motion is DENIED.
BACKGROUND

I.

Tamez was charged with conspiracy to possess a firearm in relation to a drug
trafficking offense and crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and
924(o). He pled guilty without a plea agreement and was sentenced on January 22, 2021,
to 84 months’ imprisonment, to be followed by 3 years’ supervision. Judgment was
entered on January 27, 2021. Tamez filed an untimely Notice of Appeal on July 12, 2021,
but did not pursue briefing. On December 16, 2021, the Fifth Circuit granted the
Government’s unopposed motion to dismiss the appeal. See United States v. Tamez, No.
21-40537 (Dec. 16, 2021). He did not petition the Supreme Court for a writ of certiorari.

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Docket entry references are to the civil case.

The Court received Tamez’s Section 2255 Motion on September 14, 2023. It was
signed August 28, 2023, and postmarked the following day.
TAMEZ’S ALLEGATIONS

II.

The Motion raises four related grounds for relief:
(1)

The residual clause of 18 U.S.C. § 924(c) is unconstitutionally vague and
violates the Fifth Amendment;

(2)

Tamez’s conviction under 18 U.S.C. §§ 924(c) and 924(o) should be vacated
in light of the holdings in United States v. Green and Andy Verde v. United
States2 that United States v. Johnson, 576 U.S. 591 (2015), should logically
extend to 18 U.S.C. § 924(c);

(3)

The Supreme Court in United States v. Davis, 588 U.S. 445 (2019), extended
Johnson and held that 18 U.S.C. § 924(c)’s residual clause is unconstitutional;
and

(4)

The Supreme Court ruled that Hobbs Act robberies are not crimes of
violence.

III.

ANALYSIS

A.

28 U.S.C. § 2255
There are four cognizable grounds upon which a federal prisoner may move to

vacate, set aside, or correct his sentence: (1) constitutional issues, (2) challenges to the
district court’s jurisdiction to impose the sentence, (3) challenges to the length of a
sentence in excess of the statutory maximum, and (4) claims that the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th
Cir. 1996). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional
rights and for a narrow range of injuries that could not have been raised on direct appeal

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The Motion provides no citation or jurisdiction for either case.

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and would, if condoned, result in a complete miscarriage of justice.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam). In addition, “a collateral challenge
may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165 (1982).
STATUTE OF LIMITATIONS

B.

A motion made under Section 2255 is subject to a one-year statute of limitations,
which, in most cases, begins to run when the judgment becomes final. 28 U.S.C. § 2255(f).3
The Fifth Circuit and the Supreme Court have held that a judgment becomes final when
the applicable period for seeking review of a final conviction has expired. Clay v. United
States, 537 U.S. 522, 531–32 (2003); United States v. Gamble, 208 F.3d 536, 536–37 (5th Cir.
2000) (per curiam).
The Fifth Circuit dismissed Tamez’s appeal on December 16, 2021. Because he did
not petition the Supreme Court for a writ of certiorari, his conviction became final 90 days
later, on March 16, 2022. Tamez therefore had until March 16, 2023, to file a motion under

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The statute provides that the limitations period shall run from the latest of:

(1) 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 filing by such governmental action;
(3) the date on which the right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.
28 U.S.C. § 2255(f).

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Section 2255. See 28 U.S.C. § 2255(f)(1). He filed his Motion on August 28, 2023—more
than five months after the statute of limitations expired.4
Equitable tolling may allow for a late-filed motion, but such exceptions to
limitations are rare. Holland v. Florida, 560 U.S. 631, 649 (2010); United States v. Riggs, 314
F.3d 796, 799 (5th Cir. 2002). The party seeking equitable tolling bears the burden of
demonstrating that tolling is appropriate. United States v. Petty, 530 F.3d 361, 365 (5th Cir.
2008). To satisfy his burden, Tamez must show that (1) he has diligently pursued his
rights, and (2) some extraordinary circumstance stood in his way. See Holland, 560 U.S. at
649; Petty, 530 F.3d at 365. “[E]quity is not intended for those who sleep on their rights.”
Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010).
Tamez has presented no facts suggesting that he has diligently pursued his rights
or that some extraordinary circumstance prevented him from timely filing his Section
2255 motion. The Motion is therefore barred by limitations, and the Court need not
consider the merits of Tamez’s claims.
CERTIFICATE OF APPEALABILITY

IV.

An appeal may not be taken to the court of appeals from a final order in a habeas
corpus proceeding “unless a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(A). Although Tamez has not yet filed a notice of appeal, the

“Under the prison mailbox rule, a prisoner’s pleading is deemed to have been filed on
the date that the pro se prisoner submits the pleading to prison authorities for mailing,” rather
than the date it is received or filed by the court. Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009).
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Section 2255 Rules instruct this Court to “issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” Rule 11, § 2255 Rules.
A Certificate of Appealability (COA) “may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The
COA determination under § 2253(c) requires an overview of the claims in the habeas
petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To warrant a grant of the certificate as to claims that the district court rejects solely
on procedural grounds, the movant must show that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court concludes that Tamez cannot establish at least one of the Slack criteria.
Specifically, jurists of reason would not find this Court’s procedural rulings debatable.
Accordingly, Tamez is not entitled to a COA as to his claims.
V.

CONCLUSION
For the foregoing reasons, Tamez’s motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255, (Dkt. No. 1), is DENIED. Tamez is further DENIED
a Certificate of Appealability.
It is SO ORDERED.

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Signed on March 5, 2025.
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DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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