United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
D. RAINEY, SENIOR U.S. DISTRICT JUDGE
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.
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.
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.
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
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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h).
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.
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 ...