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.

Hernandez v. United States

United States District Court, W.D. Texas, Austin Division

May 16, 2017

RICHARD ALBERT HERNANDEZ
v.
UNITED STATES OF AMERICA

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

         Before the Court is Richard Albert Hernandez's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed on April 25, 2017 (Dkt. No. 43). The undersigned magistrate judge submits this Report and Recommendation pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules.

         I. GENERAL BACKGROUND

         On October 20, 2009, Movant Richard Albert Hernandez (“Hernandez”) was charged in a one-count indictment with possession with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). Dkt. No. 1. On November 18, 2009, the United States gave Hernandez written notice of its intent to use his prior felony drug conviction to enhance his sentence, pursuant to 21 U.S.C. § 851. Dkt. No. 12. On January 13, 2010, Hernandez entered a plea of guilty to the one-count indictment pursuant to a plea agreement. On March 8, 2010, the District Court sentenced Movant to a 120-month term of imprisonment, followed by an eight-year term of supervised release, a $100 mandatory assessment fee and an order of forfeiture. See Judgment and Commitment Order (Dkt. No. 36). Hernandez did not file a direct appeal of his conviction and sentence.

         In this motion, Hernandez argues that his sentence enhancement under 21 U.S.C. § 851 was erroneous because his prior convictions do not qualify as predicate offenses under the sentencing guidelines, relying on the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), and the Fifth Circuit's subsequent opinions in Hinkle v. United States, 832 F.3d 569 (5th Cir. 2016), and United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017).

         II. ANALYSIS

         A. The AEDPA's Time Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations period for filing a § 2255 motion in federal court. 28 U.S.C. § 2255(f). A § 2255 movant generally must file his claim for relief within one year of the date when his conviction becomes final. Id. at § 2255(f)(1). As noted above, the District Court sentenced Hernandez and entered its Judgment on March 8, 2010. When a defendant does not file a direct appeal, as in this case, his conviction becomes final on the day when the time for filing a direct appeal expires. United States v. Scruggs, 691 F.3d 660, 669 (5th Cir. 2012), cert. denied, 133 S.Ct. 1282 (2013). Accordingly, Hernandez's conviction became final on March 22, 2010. See Fed. R. App. P. 4(b)(1)(A) (a defendant's notice of appeal must be filed in the district court within 14 days after entry of the judgment). Because Hernandez did not file this motion until April 24, 2017, his petition is clearly untimely under § 2255(f)(1), unless it falls within an exception to the tolling rules for 2255 petitions.

         Hernandez relies on the Supreme Court's decision in Mathis v. United States, in an attempt to overcome the one-year limitations period in § 2255(f)(1). Hinkle's reliance on Mathis suggests he is arguing that the one-year limitations period should not run from the date his conviction became final, but instead should run from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). However, Hernandez's reliance on § 2255(f)(3) is misplaced. Mathis held that, for the purpose of determining whether an offense qualifies as an ACCA predicate, the court takes a modified categorical approach, looking to the statutory elements of the offense rather than to the means of commission. 136 S.Ct. at 2257. As numerous courts in this Circuit have noted, “Mathis did not set forth a new rule of constitutional law that has been made retroactive to cases on collateral review.” Lopez v. United States, 2017 WL 1284946 at * 2 (W.D. Tex. April 5, 2017) (J. Sparks) (quoting Milan v. United States, 2017 WL 535599, at *2 (N.D. Tex. Jan. 18, 2017)). See also, In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (denying authorization to file a successive § 2255 motion because the defendant failed to make the requisite showing that Mathis created “new rules of constitutional law that have been made retroactive to cases on collateral review.”). Because the Supreme Court has not made Mathis retroactively applicable to cases on collateral review, § 2255(f)(3) is not applicable, and Hernandez's one year limitations period commenced on the date his conviction became final.

         Hernandez's reliance on Hinkle v. United States, 832 F.3d 569 (5th Cir. 2016), and United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017) does not overcome this problem. As Judge Sparks recently noted, “[t]hese cases did not write new law, nor do they constitute retroactively applicable Supreme Court decisions.” Lopez, 2017 WL 1284946 at * 3. Accordingly, Hernandez's § 2255 Motion is time-barred under 2255(f)(1).

         III. RECOMMENDATION

         Based upon the foregoing, the Magistrate Court RECOMMENDS that the District Court DISMISS Kenneth Hernandez's Motion to Vacate, Set Aside, or Correct Illegal Sentence under 28 U.S.C. § 2255 (Dkt. No. 43) as time-barred.

         IV. ...


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.