United States District Court, S.D. Texas, Corpus Christi Division
ORDER DISMISSING MOTION TO VACATE, SET-ASIDE OR
CORRECT SENTENCE AND DENYING A CERTIFICATE OF
Graham Jack Senior United States District Judge
Escobedo (Escobedo) filed a motion vacate, set-aside or
correct sentence pursuant to 28 U.S.C. § 2255 along with
a Memorandum of Law, a motion to appoint counsel, and a
motion to proceed in forma pauperis. D.E. 430-433.
The Court has reviewed the § 2255 motion and concludes
that summary dismissal is appropriate because “it
plainly appears from the motion . . . and the record of prior
proceedings that the moving party is not entitled to relief.
. . .” Rule 4(b), Rules Governing Section 2255
Proceedings for the United States District Courts (2016)
(2255 Rules). Escobedo's motion to appoint counsel is
denied, his motion to proceed in forma pauperis is
denied as unnecessary, the § 2255 motion is dismissed
and he is denied a certificate of appealability.
Court has jurisdiction pursuant to 28 U.S.C. § 2255.
pleaded guilty to conspiracy to possess with intent to
distribute more than 500 grams of methamphetamine and was
sentenced to 360 months imprisonment. D.E. 314. After his
guilty plea, the Probation Department prepared a Presentence
Investigation Report (PSR). D.E. 261. Escobedo's base
offense level of 38 was based upon drug quantity. Four levels
were added due to his leadership role. After acceptance of
responsibility, Escobedo's total offense level was 39.
Id., ¶¶ 113-120. However, Escobedo
qualified as a career offender under the sentencing
guidelines based on two Texas convictions for possession of
cocaine with intent to deliver and aggravated robbery.
Id., ¶ 121. His offense level did not change,
but his criminal history category increased from IV to VI due
to the enhancement. Id., ¶¶ 129-137. His
guideline sentencing range was 360 months to life
imprisonment. Id., ¶ 156.
challenges his career offender status based upon Hinkle
v. United States, 832 F.3d 569 (5th Cir. 2016).
Hinkle held that a violation of Texas' Health
and Safety Code § 481.112(a) does not qualify as a
controlled substance offense. He also cites Mathis v.
United States, 136 S.Ct. 2243 (2016), in support.
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).
Motion to Appoint Counsel and to Proceed in forma
requests appointment of counsel to assist with his §
2255 motion. 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).
Escobedo's motion is denied.
also requests to proceed in forma pauperis. His
motion is denied because the motion is unnecessary. There are