Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Rodriguez

United States District Court, S.D. Texas, Corpus Christi Division

April 19, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ABRAHAM SALOMON RODRIGUEZ, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE

         Abraham 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.

         BACKGROUND AND CLAIMS

         Rodriguez 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 App'x 108 (5th Cir. Sept. 13, 2010) (per curiam) (designated unpublished).

         Rodriguez 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.

         ANALYSIS

         Rodriguez' 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:

         A 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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

         Where a 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.”).

         Rodriguez' 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 the motion.

         Rodriguez' 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 cases ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.