United States District Court, S.D. Texas, Corpus Christi Division
ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE AND DENYING A CERTIFICATE OF APPEALABILITY
Graham Jack Senior United States District Judge
Fred Winterroth (Winterroth) filed a motion to vacate, set
aside or correct judgment pursuant to 28 U.S.C. § 2255.
D.E. 39, 51. Winterroth filed a motion for appointment of
counsel, the government responded, filed a motion for summary
judgment, and Winterroth filed a reply. D.E. 61, 62, 63, 64.
For the reasons stated herein, the Court denies
Winterroth's motion for appointment of counsel, denies
his motion to vacate, and denies him a certificate of
appealability. The Court grants the government's motion
for summary judgment.
was sentenced to 262 months in the Bureau of Prisons in 2006
as an armed career criminal based upon his conviction for
felon in possession of a firearm. D.E. 34. Judgment was
entered on the docket on December 21, 2006. Winterroth did
not appeal. He filed a motion to vacate his sentence pursuant
to 28 U.S.C. § 2255 in June 2014 that this Court
dismissed on limitations grounds. See D.E. 37. He
filed a second motion to vacate his sentence in February 2016
that this Court dismissed as second or successive and
transferred to the Fifth Circuit Court of Appeals. The Fifth
Circuit granted Winterroth permission to file the motion.
challenges his sentence based upon United States v.
Johnson, 135 S.Ct. 2551 (2015). He contends that his
previous burglary convictions do not qualify as predicate
offenses for enhancement pursuant to 18 U.S.C. §
924(e)(1). He does not challenge the use of his Texas robbery
conviction as a predicate offense. He urges that his motion
is timely because it was filed less than year after the
decision in Johnson.
28 U.S.C. § 2255
are four cognizable grounds upon which a federal prisoner may
move to vacate, set aside or correct his sentence: 1)
constitutional issues, 2) challenges to the district
court's jurisdiction to impose the sentence, 3)
challenges to the length of a sentence in excess of the
statutory maximum, and 4) claims that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255; United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). “Relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam).
Motion for Appointment of Counsel
requested appointment of counsel to assist him with these
proceedings. A § 2255 movant is 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, 107 S.Ct.
1990 (1987) (“We have never held that prisoners have a
constitutional right to counsel when mounting collateral
attacks upon their convictions. Our cases establish that the
right to appointed counsel extends to the first appeal of
right, and no further.”) (internal citation omitted).
Winterroth's motion is clear .Winterroth's motion to
appoint counsel is denied.
argues that his burglary convictions no longer qualify as
predicate offenses under the ACCA after Johnson.
Johnson held that the residual clause of the
definition of violent felony in 18 U.S.C. §
924(e)(1)(ii) was ...