Ortiz-Minor v. United States of America, No. 7:2016cv00353 - Document 5 (S.D. Tex. 2017)

Court Description: 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)
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Ortiz-Minor v. United States of America Doc. 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION United States District Court Southern District of Texas ENTERED February 10, 2017 David J. Bradley, Clerk NOE ORTIZ-MINOR Plaintiff VS. 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. 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.3 II. Discussion 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. 1 Dkt. No. 1. Dkt. No. 4. 3 135 S. Ct. 2552 (2016). 4 28 U.S.C. ' 2255. 5 Id. 6 135 S.Ct. 2551 (2015). 1/2 2 Dockets.Justia.com 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. 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. 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. ___________________________________ Micaela Alvarez United States District Judge 7 Id. 136 S.Ct. 1257 (2016). 9 No. 15-40041 (Fifth Circuit filed August 5, 2016). 2/2 8