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. Escobedo

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

May 9, 2017

UNITED STATES OF AMERICA
v.
MARK ESCOBEDO; aka BEATLE; aka BEDO Civil Action No. 2:17-CV-110

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

          Janis Graham Jack Senior United States District Judge

         Mark 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.

         I. JURISDICTION

         This Court has jurisdiction pursuant to 28 U.S.C. § 2255.

         II. BACKGROUND

         Escobedo 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.

         III. MOVANT'S CLAIMS

         Escobedo 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.

         VI. 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).

         B. Motion to Appoint Counsel and to Proceed in forma pauperis

         Escobedo 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.

         Escobedo also requests to proceed in forma pauperis. His motion is denied because the motion is unnecessary. There are no ...


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.