United States District Court, S.D. Texas, McAllen Division
OPINION AND ORDER
Micaela Alvarez United States District Judge.
Martinez Tapia (“Martinez”) filed a Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody. The Government
has responded with a motion to dismiss. After considering
the motion and applicable law, the Motion is DISMISSED.
Procedural History and Relevant Facts
August 2013, Martinez was indicted in a one count indictment
of violating 8 U.S.C. § 1326. He subsequently pled guilty
and was sentenced to a 36 month term of
imprisonment.No term of supervised release was
imposed. Martinez did not appeal his conviction or
sentence. On April 28, 2014, Martinez filed the motion now
before the Court, asserting he should have received a lesser
sentence. At the time Martinez filed this motion, he was
serving the term of imprisonment imposed by this Court.
According to the Bureau of Prisons' website, Martinez has
now been released from federal custody. Therefore, before
addressing the merits of Martinez's motion, the Court
must consider whether it has become moot.
28, United States Code, Section 2255 provides that a prisoner
in custody who claims that his “sentence was
imposed in violation of the Constitution or laws of the
United States . . . or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the
sentence.” Usually, ‘custody' signifies
incarceration or supervised release . . .
.” Here, the record makes clear that Martinez
was in custody when he filed his motion to correct sentence.
Pursuant to Supreme Court precedent, a defendant's
incarceration at the time of filing is all the ‘in
custody' provision of 28 U.S.C. § 2255
requires. “The more substantial question,
however, is whether petitioner's subsequent release
caused the petition to be moot because it no longer presented
a case or controversy under Article III, § 2, of the
Constitution. ‘This case-or-controversy requirement
subsists through all stages of federal judicial proceedings,
trial and appellate . . . . The parties must continue to have
a ‘personal stake in the outcome' of the
lawsuit.'” Where, as here, the defendant challenges
only the sentence, not the underlying conviction, he must
affirmatively allege and demonstrate collateral
consequences.Furthermore, such collateral consequences
are not presumed.
previously noted, Martinez raises several grounds attacking
the sentence he received. In none of those grounds does
Martinez raise an issue pertaining to his conviction. As also
noted, Martinez did not receive a term of supervised release.
Martinez has fully discharged his sentence. Martinez has made
no allegation, nor has he presented any facts to support a
finding that he is suffering any collateral consequences.
Martinez has now been released from custody and he has made
no affirmative showing that he continues to suffer any
collateral consequences, his motion to correct sentence must
be, and it is hereby DISMISSED. Additionally, should
Petitioner seek a certificate of appealability, such is
 See Dkt. No. 1. “Dkt. No.”
refers to the docket number entry for the Court's
electronic filing system. The Court will hereafter cite to
the docket number entries in Criminal Case No. 7:13-cr-1409,
rather than the filings in the civil case. Martinez has