Lopez-Mendez v. United States of American, No. 7:2016cv00011 - Document 5 (S.D. Tex. 2016)
Court Description: OPINION AND ORDER. Certificate of appealability DENIED. Case terminated on 8/15/2016.(Signed by Judge Micaela Alvarez) Parties notified.(bgarces, 7)
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Lopez-Mendez v. United States of American Doc. 5 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 § § § § CIVIL ACTION NO. 7:16-CV-11 § § § § 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 1/2 Dockets.Justia.com 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). 7 2/2
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