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United States v. Winterroth

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

April 20, 2017

UNITED STATES OF AMERICA
v.
FRED WINTERROTH Civil Action No. 2:16-CV-263

          ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE AND DENYING A CERTIFICATE OF APPEALABILITY

          Janis Graham Jack Senior United States District Judge

         Defendant 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.

         I. PROCEDURAL BACKGROUND

         Winterroth 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. D.E. 47.

         II. MOVANT'S CLAIMS

         Winterroth 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.

         III. ANALYSIS

         A. 28 U.S.C. § 2255

         There 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).

         B. Motion for Appointment of Counsel

         Winterroth 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.

         C. Johnson Claim

         Winterroth 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. ยง 924(e)(1)(ii) was ...


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