United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE
Salomon Rodriguez filed a Notice of Eligibility and Motion
for Appointment of Counsel (D.E. 142), in which he challenges
his sentence base upon a new decision of the Fifth Circuit,
United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016), and requests appointment of counsel to assist him with
his claim. The relief Rodriguez seeks is available, if at
all, pursuant to a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255.
was convicted of conspiracy to possess with intent to
distribute more than 5 kilograms of cocaine in violation of
21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) and
was sentenced to 240 months' imprisonment. Although
Rodriguez qualified as a career offender, he was sentenced
based upon his actual offense level, 42, which was higher.
His plea agreement included a waiver of his right to appeal
or to collaterally attack the judgment. Rodriguez appealed,
but the Fifth Circuit Court of Appeals dismissed his appeal
as frivolous. United States v. Rodriguez, 395 Fed.
App'x 108 (5th Cir. Sept. 13, 2010) (per curiam)
filed a timely motion to vacate, set aside, or correct
sentence in May 2011. The Court denied the motion by
Memorandum Opinion and Order and Final Judgment entered
December 14, 2011. D.E. 117, 118. Although Rodriguez
appealed, the Fifth Circuit denied his request for a
Certificate of Appealability. United States v.
Rodriguez, No. 12-40079 (5th Cir. Dec. 26, 2012).
Rodriguez has since filed other post-conviction motions.
present motion was filed after a previous § 2255 motion;
thus, his current motion is a second or successive motion. In
pertinent part, 28 U.S.C. § 2255(h) provides:
second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals
to contain -
(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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h).
claim is second or successive, the movant is required to
seek, and acquire, the approval of the Fifth Circuit before
filing a second § 2255 motion before this Court. See
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.
2000); 28 U.S.C. § 2244 (b)(3)(A) (“Before a
second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”).
motion does not indicate that he has sought or obtained
permission from the Fifth Circuit to file the present motion.
Until he does so, this Court does not have jurisdiction over
request for appointed counsel is denied because the Court
does not have jurisdiction to grant his relief, and persons
who file § 2255 motions are not automatically entitled
to appointed counsel. See United States v. Vasquez,
7 F.3d 81, 83 (5th Cir. 1993); see also Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987) (“We have never
held that prisoners have a constitutional right to counsel
when mounting collateral attacks upon their convictions. Our