Gallegos v. United States of America Do not docket in this case. File only in (4:05-cr-478)., No. 4:2016cv01901 - Document 2 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:16cv1901 (Defendant No. 2) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Gallegos v. United States of America Do not docket in this case. File only in (4:05-cr-478). Doc. 2 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CARLOS GALLEGOS, Petitioner/Defendant, v. UNITED STATES OF AMERICA, Respondent/Plaintiff. § § § § § § § § § June 30, 2016 David J. Bradley, Clerk CIVIL ACTION NO. H-16-1901 (Criminal No. H-05-478-02) MEMORANDUM OPINION AND ORDER Defendant, U.S.C. § Carlos Gallegos, has filed a Motion Under 28 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody ("§ 2255 Motion") (Docket Entry No. 276). The court has carefully reviewed Gallegos' motion as required by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts and concludes that a response to his motion is not required. On July 26, 2006, Gallegos pleaded guilty to conspiracy to commit hostage taking in violation of 18 U.S.C. January 12, 2007, § 1203(a). On the court sentenced Gallegos to 324 months in prison (Judgment in a Criminal Case, Docket Entry No. 201). The United States Court of Appeals for the Fifth Circuit affirmed his conviction on June 6, 2008 (Docket Entry No. 250). 2009, Gallegos filed a Motion Under 28 u.s.c. § On January 15, 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Docket Dockets.Justia.com Entry No. On April 8, 252) . the court entered an Order the 2255 dismissing without No. Gallegos then filed an amended 261). prejudice 2009, § Motion § (Docket Entry 2255 Motion (Docket Entry No. 264-1), which the court denied on July 20, 2010 (Docket Entry No. 272) . In his pending § 2255 Motion Gallegos argues that he is entitled to relief because of the retroactive effect of Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson the Court held that the residual clause of the Armed Career Criminal Act (ACCA) , 18 U.S.C. 924(e) (2) (B) (ii), for purposes of sentence enhancement § for a felon's possession of a firearm was unconstitutionally vague. In Welch v. United States, 136 S. Ct. 1257 (2016), the Court held that its decision in Johnson announced a substantive rule that applied retroactively on collateral review. In his § 2255 Motion Gallegos alleges "Johnson/Welch decision which could affect petitioner. No. 276, p. 4) 18 U.S.C. § 11 (§ 2255 Docket Entry Gallegos' sentence was not based on the ACCA or on 16, and neither the ACCA nor 18 U.S.C. his advisory sentencing guideline range. guideline Motion, range affected by any § 16 affected Nor was his sentencing provision of guidelines that used the term "crime of violence. the 11 sentencing Gallegos is therefore not entitled to relief based on Johnson. 28 U.S.C. § 2255(h) states: A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-2- (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or ( 2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. This provision jurisdictional successive bar habeas and to a 28 U.S.C. district petition until § 2244(b) (3) (A) court's the act as a consideration of a court authorized the district court to consider it. explained above, § § 2255(h) (2) does not apply. of appeals has For the reasons Because Gallegos' 2255 Motion is successive and he has not obtained authorization from the United States Court of Appeals for this court to consider it, his Motion Under 28 U.S.C. Correct Sentence By a § 2255 to Vacate, Set Aside, or Person in Federal Custody (Docket Entry The Clerk of Court is ORDERED to provide a copy of this No. 276) is DISMISSED. Memorandum Opinion and Order to Gallegos and to the United States Attorney for the Southern District of Texas, and to file a copy of this Memorandum Opinion and Order in the corresponding civil action. SIGNED at Houston, Texas, on this the 30th day of June, 2016. UNITED STATES DISTRICT JUDGE -3-
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