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United States v. Hudec

United States District Court, S.D. Texas, Houston Division

July 10, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DARRELL HUDEC, Defendant/Movant. Civil No. 4:17-2047

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY, SENIOR U.S. DISTRICT JUDGE

         Pending before the Court is Defendant/Movant Darrell Hudec's Motion Requesting the Court with the Consent of the Government to Reduce his Sentence Pursuant to the Holloway Doctrine (D.E. 166). The Court concludes that it is not necessary to order a Government response because "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." See Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts.

         I. Background

         In 1993, Movant filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, which the Court denied. D.E. 141, 143. He filed another § 2255 motion in 2016 seeking to reduce his sentence under Johnson v. United States, 136 S.Ct. 2551 (2015), which the Court denied as successive. D.E. 160, 162. The Court instructed the Clerk to transfer the motion to the Fifth Circuit Court of Appeals, but the Fifth Circuit denied Movant's request to consider a successive § 2255 motion. D.E. 162, 164.

         Movant now moves the Court to vacate his sentence under Hollow ay v. United States, 68 F.Supp.3d 310 (E.D.N.Y. 2014). Specifically, he asks the Court to set aside the remaining 10 years left on his 40-year sentence because: (1) he has demonstrated post-sentencing rehabilitation and "is not the same person who made those terrible decisions;" (2) his "sentence is disproportionately severe compared to sentences imposed on leaders of major drug trafficking organizations;" (3) "there is nothing left to be gained by him spending any more time in prison;" and (4) "incarcerating] him any longer is a waste of resources-both human and financial." D.E. 165, pp. 3, 6, 9. He has also attached several letters in support from himself, family members, and a fellow inmate; his Inmate Education Data Transcript; and Certificates of Completion for various BOP classes. D.E. 165-3, 165-4, 165-5.

         II. Analysis

         The relief Movant seeks is available, if at all, pursuant to a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Because his present motion was filed after a previous § 2255 motion, it is a second or successive motion.

         In pertinent part, 28 U.S.C. § 2255(h) provides:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain -
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

         Where a claim is second or successive, the movant is required to seek, and acquire, the approval of the Fifth Circuit before filing a second § 2255 motion before the Court. 28 U.S.C. § 2244 (b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."); Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000).

         Movant's motion does not indicate that he has sought or obtained permission from the Fifth Circuit to file the present motion. Until he does so, the Court does not have jurisdiction over the motion. Accordingly, Movant's motion is dismissed as second or successive. See United States v. Orozco-Ramirez,211 F.3d ...


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