Opinion
EP-17-CV-186-PRM EP-02-CR-1114-PRM-1
07-19-2017
ESEQUIEL HERNANDEZ, Fed. Reg. No. 34064-180, Movant, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Movant Esequiel Hernandez's pro se "Memorandum in Support of His Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255" (ECF No. 163) [hereinafter "Motion"], filed on June 14, 2017. In his Motion, Movant challenges the reasonableness of the sentence that the Court imposed in his case following his guilty-plea conviction for conspiracy to possess with the intent to distribute marijuana. Movant claims the Court erred when it enhanced his sentence based on his conviction for possessing marijuana. He asks the Court to resentence him without the enhancement.
"ECF No." refers to the Electronic Case Filing number for documents docketed in EP-02-CR-1114-PRM-1. Where a discrepancy exists between page numbers on filed documents and page numbers assigned by the ECF system, the Court will use the latter page numbers.
Mot. 2.
Id.
Because it plainly appears from Movant's Motion and the record that Movant is not entitled to § 2255 relief, the Court will deny his Motion. The Court will additionally deny him a certificate of appealability.
I. BACKGROUND AND PROCEDURAL HISTORY
In late 1997, an unindicted co-conspirator disclosed to Drug Enforcement Administration special agents that Movant had joined his narcotics-trafficking organization to help facilitate the shipment of marijuana from El Paso, Texas, to Florida, New York, North Carolina, Oklahoma, and other domestic locations. The co-conspirator further revealed that Movant managed "stash houses" in El Paso and organized marijuana shipments for him.
Plea Agreement 7, June 23, 2003, ECF No. 86.
Id.
A grand jury returned a one-count indictment charging Movant and others with conspiracy to possess with the intent to distribute more than 100 kilograms of marijuana. Movant pleaded guilty, pursuant to the terms of a plea agreement.
Indictment, June 19, 2002, ECF No. 1.
In Movant's presentence investigation report, the probation officer noted that the Drug Quantity Table in the Sentencing Guidelines for the amount of marijuana attributed to Movant established a base offense level of 34. The probation officer added a two-level upward adjustment for Movant's leadership role and a two-level upward adjustment because Movant failed to appear at his original sentencing hearing. The probation officer also attributed one criminal history point to Movant for a prior conviction for possession of more than five but less than fifty pounds of marijuana under Docket Number 940D78987 in the 210th Judicial District Court of El Paso, County, Texas, and two criminal history points because Movant was on probation at the time he committed the instant offense. Based on a total offense level of 38 and a criminal history category of II, Movant's guideline imprisonment range was 262 to 327 months. The Court adopted the presentence investigation report without change and sentenced Movant within the guidelines range to 288 months' imprisonment. The Court subsequently reduced the sentence to 230 months' imprisonment.
Presentence Investigation Report ¶ 56, Dec. 28, 2011, ECF No. 131 (sealed).
Id. at ¶¶ 59, 60.
Id. at ¶66 (noting that the Texas court sentenced Movant to eight years' deferred adjudication probation).
Id. at ¶¶ 66, 68. See U.S. Sentencing Guideline Manual § 4A1.1. Criminal History Category (U.S. Sentencing Comm'n 2011) ("The total points from subsections (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A. (a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. (b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a). (c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection. (d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. (e) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was counted as a single sentence, up to a total of 3 points for this subsection.") (emphasis added).
Id. at ¶ 61. Without the criminal history points, Movant's guideline sentencing range would have been 235 to 293 months' imprisonment. See U.S. Sentencing Guideline Manual Sentencing Table (U.S. Sentencing Comm'n 2011).
Statement of Reasons, Jan. 5, 2012, ECF No. 133 (sealed).
J., Jan. 4, 2912, ECF No. 134.
Order Regarding Mot. for Sentencing Reduction, Feb. 8, 2916, ECF No. 156.
Movant claims that, in light of Mathis v. United States, 136 S. Ct. 2243 (2016), United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017), the Court should resentence him because his convictions "under Texas Health & Safety Code 481.112(a) do not qualify as prior convictions for enhanced penalty under 28 U.S.C. § 851." He asks the Court to resentence him without an enhancement.
Mot. 3.
Id. at 9.
II. APPLICABLE LAW
A § 2255 motion "'provides the primary means of collateral attack on a federal sentence.'" Relief under § 2255 is warranted for errors that occurred at trial or at sentencing. Before a court will grant relief pursuant to § 2255, a movant must "establish that either (1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack."
Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)).
See Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997) ("Because all of the errors Ojo alleges [occurred before or during sentencing], they must be addressed in a § 2255 petition, and the only court with jurisdiction to hear that is the court that sentenced him.").
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
A § 2255 motion is subject to a one-year limitations period. A federal prisoner must file a § 2255 motion within one year from the date on which (1) the judgment became final; (2) the government-created impediment to filing the motion was removed; (3) the United States Supreme Court initially recognized, and made retroactively applicable to cases on collateral review, the legal predicate for the motion; or (4) the petitioner could have discovered, through due diligence, the factual predicate for the motion.
28 U.S.C. § 2255(f) (2012).
Id. § 2255(f)(4); United States v. Brown, 305 F.3d 304, 306-07 (5th Cir. 2002).
The one-year limitations period is not jurisdictional and is subject to equitable tolling. Equitable tolling is not, however, available for "garden variety claims of excusable neglect." It "is permitted only 'in rare and exceptional circumstances.'"
Holland v. Florida, 560 U.S. 631, 645 (2010) ("[W]e hold that § 2244(d) is subject to equitable tolling in appropriate cases.").
Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (internal quotation marks omitted).
Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
Ultimately, the movant bears the burden of establishing his claims of error by a preponderance of the evidence. "If it plainly appears from the motion . . . and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . ."
Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980) (citing United States v. Kastenbaum, 613 F.2d 86, 89 (5th Cir. 1980)).
28 U.S.C. foll. § 2255 Rule 4(b); see also 28 U.S.C. § 2255(b) (2012); United States v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990) ("Faced squarely with the question, we now confirm that § 2255 requires only conclusive evidence—and not necessarily direct evidence—that a defendant is entitled to no relief under § 2255 before the district court can deny the motion without a hearing.").
III. ANALYSIS
Movant claims that, in light of Mathis, Hinkle, and Tanksley, the Court erred when it enhanced his punishment based on his prior state-court felony conviction for a violation of Texas Health & Safety Code 481.112(a). He asks the Court to resentence him without the enhancement.
Mot. 2.
Id. at 9.
In Mathis, the Supreme Court outlined the process by which a district court should determine, for the purposes of the Armed Career Criminal Act, if a defendant's prior state-court conviction was one of the enumerated violent felonies listed in 18 U.S.C. § 924(e)(2)(B)(ii). Prior to Mathis, the Supreme Court required a district court to compare the elements of the state crime with the generic version of the enumerated federal offense. If the state crime was "the same as, or narrower than, the relevant generic offense," then the state crime qualified as an enumerated offense. The Supreme Court reaffirmed this approach in Mathis, but added that, because the inquiry focused on the generic offense, a court "may not ask whether the defendant's conduct—his particular means of committing the crime—falls within the generic definition." Accordingly, the Supreme Court concluded that if the elements of the state law crime are broader than the generic version of an enumerated federal offense, then the state law conviction could not serve as a predicate for career offender status under the Armed Career Criminal Act.
Mathis, 136 S. Ct. at 2247-57.
Id. at 2257; see also Taylor v. United States, 495 U.S. 575, 599 (1990).
Mathis, 136 S. Ct. at 2257.
Id.
In Hinkle, the Fifth Circuit Court of Appeals held that a prior conviction for delivery of a controlled substance, in violation of Texas Health & Safety Code § 481.112(a), could not "serve as a predicate offense under the Career Offender Guideline provision, which is [Sentencing Guideline] § 4B1.1." The Fifth Circuit reasoned that "[t]he 'delivery' element of Hinkle's crime of conviction criminalize[d] a 'greater swath of conduct than the elements of the relevant [Guidelines] offense.'" The Fifth Circuit further explained that, although Circuit precedent previously permitted sentencing courts to use a "modified categorical approach" and ascertain from state-court records whether the actual method of delivery constituted a controlled substance offense under the Sentencing Guidelines, "Mathis makes clear that sentencing courts may no longer do so."
See Tex. Health & Safety Code Ann. § 481.112 (West 2016) ("[A] person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.").
Hinkle, 832 F.3d at 576-77.
Id. at 576 (quoting Mathis, 136 S.Ct. at 2251) (some alterations in original).
Id. at 574-75.
Finally, in Tanksley, the Fifth Circuit held that Texas Health & Safety Code "[s]ection 481.112(a) is an indivisible statute to which the modified categorical approach does not apply" because it "criminalizes a greater swath of conduct than the elements of the relevant [Guidelines] offense." Thus, the Fifth Circuit concluded that the offense of possession with the intent to deliver a controlled substance under § 481.112(a) did not qualify as a "controlled substance offense under the Sentencing Guidelines."
Tanksley, 848 F.3d at 352 (internal quotation marks omitted).
Id.
As the Court noted above, a § 2255 motion is subject to a one-year limitations period, which, in most cases, begins to run when the judgment becomes final. In this case, Movant timely appealed his sentence, and the Fifth Circuit affirmed the Court's judgment on December 21, 2012. Movant did not pursue further direct appeals. Thus, Movant's conviction became final on March 21, 2013, when the 90-day period for filing a petition for writ of certiorari expired. Hence, Movant's time period for filing a § 2255 motion expired on March 21, 2014. Movant filed his Motion on June 14, 2017. Thus, he filed his Motion over three years beyond the deadline.
28 U.S.C. § 2255(f)(1)(2012).
Fifth Circuit Court of Appeals Judgment, Dec. 21, 2012, ECF No. 149.
See Sup. Ct. R. 13 ("The time to file a petition for writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed."); see also Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987) ("By 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.").
Mot. 1.
As the Court noted above, § 2255's limitations period is extended "if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Movant asserts that his Motion is timely because it relies on the recent decisions in Mathis, Hinkle, and Tanksley:
Mot. 1, 3, 8.
The Fifth Circuit's recent decision in Tanksley, and Hinkle, in light of Mathis, determined Texas Health & Safety Code section 481.112(a) is an "indivisible" statute with multiple means of how to violate the statute, with at least one of those means being applied more broadly than the qualifying offense (i.e., it applies
to an offense that is not criminalized under the definition of the qualifying offense), the prior conviction cannot be a predicate using the "categorical approach."
All of Mr. HERNANDEZ['s] prior offenses used as predicates for the . . . enhancement fall under the Texas Health & Safety Code section 41.112(a.), and require the "categorical approach," and do not qualify as a predicate for the . . . enhancement, thus his sentence is in excess of the maximum authorized by law.
Wherefore Mr. HERNANDEZ . . . request[s] that the Court grant his 2255 [M]otion, . . . vacate his sentence, and resentence him without the use of the . . . enhancement.
Id. at 8-9.
Movant's reliance on Mathis to extend the limitations period is misplaced. In Mathis, the Supreme Court held that a modified categorical approach was not appropriate for indivisible statutes. Thus, Mathis "provided helpful guidance for determining whether a predicate statute of conviction is divisible." However, the Supreme Court also indicated in Mathis that its decision was dictated by prior precedent and that it was not announcing a new rule. Multiple courts have subsequently concluded that "Mathis did not set forth a new rule of constitutional law that has been made retroactive to cases on collateral review." Because Mathis was not made retroactively applicable to cases on collateral review, the Court cannot read it as triggering a new, one-year period for Movant to obtain § 2255 relief.
Mathis, 136 S. Ct. at 2257.
United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016).
See Mathis, 136 S. Ct. at 2257 ("Our precedents make this a straightforward case."); see also Teague v. Lane, 489 U.S. 288, 301 (1989) ("[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.").
Milan v. United States, No. 3:16:CV-1850-D-BK, 2017 WL 535599, at *2 (N.D. Tex. Jan. 18, 2017) (emphasis added); see also In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (denying authorization to file a successive § 2255 motion because defendant failed to make the requisite showing that Mathis created "new rules of constitutional law that have been made retroactive to cases on collateral review"); United States v. Taylor, 672 F. App'x 860, 864 (10th Cir. 2016) (concluding "Mathis did not announce a new rule"); Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016) (concluding Mathis did not announce a new rule that would allow a second or successive habeas petition).
Movant's reliance on the Fifth Circuit's opinions in Hinkle and Tanksley to trigger the limitation period is similarly misplaced. In both Hinkle and Tanksley, the Fifth Circuit applied Mathis on direct appeal; thus, the defendants in those cases did not suffer the same time-bar issue applicable to Movant's collateral attack. Furthermore, Hinkle and Tanksley neither wrote new law, nor constituted retroactively applicable Supreme Court decisions.
Hinkle, 832 F.3d at 574-77; Tanksley, 848 F.3d at 352.
Additionally, Movant does not claim that the Government impeded his efforts to file a motion or that he could not have timely discovered the facts supporting his claim through the exercise of due diligence. Therefore, the Court concludes that Movant's § 2255 Motion is time barred and, because his case presents no rare and exceptional circumstances, that he is not entitled to equitable tolling.
Although the statute of limitations is typically considered an affirmative defense, a district court may raise the defense on its own motion and dismiss a petition prior to any answer if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." A district court may not dismiss a motion as untimely on its own initiative, however, unless a movant first has fair notice and an opportunity to respond.
Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll. § 2254 Rule 4).
Day v. McDonough, 547 U.S. 198, 210 (2006).
In this case, the Court finds that even if the Motion were not time barred, Movant is not entitled to relief on the merits of his claim because the law he cites does not apply retroactively. Simply stated, the Court properly applied the controlling law at the time of Movant's sentencing, and the subsequent decisions in Mathis and Hinkle are not retroactively applicable to his case on collateral review.
Furthermore, the Court did not "enhance" Movant's punishment under the Career Offender Guidelines based on his prior conviction in a Texas state court for possession of marijuana. Instead, the Court attributed one criminal history point to Movant for the marijuana offense and two criminal history points because Movant was on probation at the time he committed the instant offense.
Presentence Investigation Report ¶ 63.
Id. at ¶¶ 66, 68.
Consequently, Movant is clearly not entitled to § 2255 relief on the merits of his claim. Under these circumstances, granting Movant an opportunity to explain the delay in filing his § 2255 Motion is unnecessary.
IV. CERTIFICATE OF APPEALABILITY
A petitioner may not appeal a final order in a habeas corpus proceeding "[u]nless a circuit justice or judge issues a certificate of appealability." "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." To warrant a grant of the certificate as to claims that the district court rejects solely on procedural grounds, the movant must show both 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."
28 U.S.C. § 2253(c)(1)(B) (2012).
Id. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (applying Slack to certificate of appealability determination in context of § 2255 proceedings).
In this case, reasonable jurists could neither debate the denial of Movant's § 2255 Motion on procedural or substantive grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Accordingly, the Court will not issue a certificate of appealability.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484).
See 28 U.S.C. foll. § 2255 R. 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.").
V. CONCLUSION AND ORDERS
Because it plainly appears from Movant's § 2255 Motion and the record that his claim is time barred and, in any event, he is not entitled to relief on its merits, the Court concludes that it should deny his Motion. The Court further concludes that it should deny Movant a certificate of appealability. The Court, therefore, enters the following orders:
Hernandez v. United States, A-09-CR-513-LY-1, 2017 WL 2126877, at *2 (W.D. Tex. May 16, 2017).
28 U.S.C. foll. § 2255 Rule 4(b). --------
IT IS ORDERED that Movant Esequiel Hernandez's pro se "Memorandum in Support of His Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255" (ECF No. 163) is DENIED, and his civil cause is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Movant Esequiel Hernandez is DENIED a CERTIFICATE OF APPEALABILITY.
IT IS ALSO ORDERED that all pending motions, if any, are DENIED as moot.
IT IS FINALLY ORDERED that the District Clerk shall CLOSE this case.
SIGNED this 19 day of July, 2017.
/s/ _________
PHILIP R. MARTINEZ
UNITED STATES DISTRICT JUDGE